1 Wednesday, 13 March 2019 2 (10.15 am) 3 Housekeeping 4 MR JAFFEY: Could I just apologise for intruding on 5 Mr Wolfe's time, but we have handed up two documents 6 which I hope are on the bench. The first is a note 7 relating to references on noise that Mr Pleming promised 8 yesterday afternoon, which contains all of those bundle 9 references, and the second is a note on the surface 10 matter reference. 11 LORD JUSTICE HICKINBOTTOM: These have to go in bundle? 12 MR JAFFEY: Bundle 10, behind our skeleton. We have given 13 some page references. 14 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much. 15 MR JAFFEY: I should also add that although none of the 16 Boroughs or the Mayor or Greenpeace are going to make 17 any oral submissions on the climate change issue, 18 because we didn't deal with it in our skeleton, we 19 thought we would give you a single piece of paper 20 setting out the references to the evidence that we have 21 put in, just because then they are in one place. That 22 hasn't quite been approved yet. I'll hand that up 23 later. It is not going to contain anything new, but we 24 just thought you should have the references in one 25 place. 1 1 LORD JUSTICE HICKINBOTTOM: Yes, thank you, Mr Jaffey. 2 While you are on your feet, Mr Jaffey, it really 3 applies to both you and Mr Pleming, there are a number 4 of issues both yesterday and the day before concerning 5 alternatives, and particularly obviously Gatwick. The 6 fact that by the time of the NPS Gatwick had ceased to 7 be a runner on the ground of -- it originally cropped up 8 in habitats -- hub, as well as the discrete habitats 9 ground. 10 You have taken us through the authorities on 11 alternatives, such as they are, and it is really 12 my Lord whose research is better than my memory. He has 13 identified two further authorities, which we thought we 14 should bring to your attention, so that you can make any 15 comments you want to, preferably in writing, if you have 16 any. 17 The first is a judgment of mine, which is The Queen 18 on the Application of Friends of the Earth v The Welsh 19 Ministers. That's [2015] EWHC 776, [2016] Environmental 20 Law Reports 1, which concerned reasonable alternatives 21 in the context of SEA. It set out propositions so far 22 as reasonable alternatives are concerned, as well as 23 reviewing the authorities. 24 It would be helpful if you could look at that and 25 make any comments, including any observations that parts 2 1 of that may be wrong or inapplicable for any reason. 2 That would be helpful, and no doubt Mr Maurici will do 3 the same when it comes to his turn. 4 The second authority is from about the same time, 5 about three months later, Ashdown Forest v Secretary of 6 State for Communities and Local Government [2015] EWCA 7 civil 681, [2016], PTSR 78.Again, that concerns the same 8 area. 9 That is, as it were, the law. 10 But, also, in terms of the facts and the chronology, 11 which we are still grappling with, if the analysis in 12 those cases, or at least the Friends of the Earth case, 13 is correct, then it would be open to a decision-maker 14 during the course of an iterative process such as this 15 to lawfully to decide that an alternative to a preferred 16 option would not fulfil the relevant objectives. That 17 would be open to him. But we are grappling at the 18 moment with when -- if the Secretary of State says that 19 there did come a time when he considered that Gatwick 20 was not an alternative because of -- well, I'll stop 21 there. For whatever reason. It is unclear to me, at 22 least at the moment, as to when that was, and that's 23 something which, again, Mr Maurici can perhaps address 24 when he comes to it. 25 You can, as it were, put in, perhaps, longstop dates 3 1 because we were referred to the ministerial submission, 2 for example, where it seems that decision hadn't been 3 taken, and you have the NPS when it seems to have been 4 taken, but we are not quite sure where precisely. 5 MR PLEMING: The day we both mentioned is from Ms Low's 6 witness statement, which is September 2017, which we use 7 for our forensic purposes, but there may be a different 8 date, but we'll put together a chronology, and my 9 apologies to both your Lordships for not having picked 10 up these cases. We will of course -- 11 LORD JUSTICE HICKINBOTTOM: I didn't pick it up and it was 12 my case, so I don't think we can blame you, Mr Pleming. 13 But a sort of short chronology would be perhaps 14 helpful. 15 MR PLEMING: Yes, my Lord. 16 LORD JUSTICE HICKINBOTTOM: We propose just putting those at 17 the end of the authorities bundle, whatever numbers they 18 are; Friends of the Earth and then Ashdown Forest. 19 MR JAFFEY: Does the court already have copies? 20 LORD JUSTICE HICKINBOTTOM: We have copies, thank you very 21 much. 22 MR JUSTICE HOLGATE: We have copies in the law reports, PTSR 23 and environmental reports. 24 LORD JUSTICE HICKINBOTTOM: Yes, Mr Wolfe. 25 MR WOLFE: Good morning, my Lords, as you will have seen 4 1 Peter Lockley and Andrew Parkinson and I appear for 2 Friends of the Earth. You have a day of argument around 3 climate change, first from me this morning and then from 4 Mr Crosland for Plan B this afternoon. 5 Submissions by MR WOLFE 6 MR WOLFE: Can I ask you, first of all, just by way of 7 a real background overview of the context of Friends of 8 the Earth's claims, to pick up, if you would, please, 9 bundle 13. You will have seen that part of the context 10 of Friends of the Earth's challenge is the way in which 11 climate change understanding has evolved. If we go to 12 tab 13, that is the government's Clean Growth Strategy 13 from October 2017. Within that document, within that 14 extract, rather, at page 203 of your bundle, you have 15 at paragraph numbered 1, under the heading that -- 16 MR JUSTICE HOLGATE: I am really sorry, did you say 17 bundle 13, tab 13? 18 MR WOLFE: Tab 22, sorry. 19 Page 203, this is obviously a small extract from a 20 large document. Annex C, "Climate science", the 21 government's own document. Paragraph number 1, or 22 heading number 1: 23 "Why we are committed to ambitious action on climate 24 change." 25 Then there is a section there which explains -- 5 1 I won't read through it in full detail: 2 "We are already seeing the impacts of climate change 3 ... The global average temperature ... the earth's 4 surface has risen by around 1 degree C since 5 preindustrial times ... all but one of the warmest years 6 on record have occurred since 2000 ..." 7 Then, at the foot of that column, running over: 8 "Arctic sea ice extent has declined by about 9 4 per cent every decade since records began in 1979, and 10 the sea level has risen by about 3 millimetres a year 11 since the early 1990s." 12 So, no doubt about the gravity of the situation with 13 which we are concerned. 14 In the same document, turning over the page, if you 15 would, to page 205, left-hand column, the heading 16 number 2: 17 "Global temperature goals and our progress towards 18 them." 19 So, this is moving from the impacts to the 20 understanding: 21 "Scientific evidence shows that increasing 22 magnitudes of warming increase the likelihood of severe, 23 pervasive and irreversible impacts on people and 24 ecosystems. These climate change risks increase rapidly 25 above 2 degrees C, but some risks are considerable below 6 1 2 degrees C. This is why, as part of the Paris 2 Agreement in 2015 [I am obviously going to come to that] 3 195 countries committed to hold the increase in the 4 global average temperatures to well below 2 degrees C 5 above preindustrial levels and to pursue efforts to 6 limit the temperature increase to 1.5 degrees C above 7 preindustrial levels, recognising that this would 8 significantly reduce the risks and impacts of climate 9 change. 10 "The agreement recognised that in order to achieve 11 this goal, global emissions of greenhouse gases would 12 need to peak as soon as possible, reduce rapidly 13 thereafter, and reach a net zero level in the second 14 half of this century. 15 "As part of the Paris Agreement, countries also 16 committed to reduce or limit their greenhouse gas 17 emissions." 18 So, that, in the government's words, is the broad 19 context for the concerns that we raise. 20 In terms of the challenge, we are not saying -- let 21 me be clear -- although of course Friends of the Earth 22 has many policy disagreements with the government, that 23 is not the subject of this challenge, plainly. We are 24 not saying that as a matter of law the government 25 couldn't make an ANPS of this kind. The challenge 7 1 relates very straightforwardly -- and I hope it is 2 a proper public law judicial review challenge -- to the 3 process and considerations that were taken into account 4 in the making of the ANPS. 5 We say there was a failure to comply with mandatory 6 statutory requirements, which means that this ANPS can't 7 stand. 8 As you will have seen -- and I'll develop them in 9 order shortly -- we have three grounds. 10 Ground 1 relates to the way in which the ANPS and 11 the making of the ANPS dealt with the mandatory duty in 12 section 5 of the Planning Act, in relation to existing 13 government climate change policy. 14 Grounds 2 and 3 relate to how that process and the 15 ANPS dealt with emerging matters since the government 16 climate change policy was settled. 17 Let me just highlight a distinction between our 18 position and that of Mr Crosland for Plan B. We have 19 a different view on what constitutes government policy. 20 In other words, just to crystallise the point, is Paris 21 and the post-Paris materials or considerations part of 22 current government policy, as Mr Crosland says, or not, 23 as we say? 24 But this is the only point I'll make about the 25 relationship between the two cases: both of us say that 8 1 one way or another those matters needed to be part of 2 the evaluation that led into this ANPS, and they wrongly 3 weren't. 4 That is all I will say about the relationship 5 between our two cases. 6 LORD JUSTICE HICKINBOTTOM: Yes. 7 MR WOLFE: My Lords, can I pick up, as it were, the sort of 8 foothills of the background to those matters in 9 essentially chronological order and start, if I may, 10 with the Climate Change Act itself. You have this in 11 tab 4 of the legal materials bundle if we could just 12 bring that to hand, please. I won't take you through 13 the detail of it because it is straightforward and, 14 I think, at this level uncontroversial, but just so that 15 you see the original. 16 Climate Change Act of 2008. Section 1 requires the 17 Secretary of State to ensure that the net UK carbon 18 account for the year 2015 is at least 80 per cent lower 19 than the 1990 baseline. Emphasise for a moment 2050 and 20 carbon. 21 There is then a mechanism in section 2, with which 22 we are not concerned, for amending through the target 23 year or the baseline year. 24 There is then, at section 4, a framework for setting 25 budgetary periods, which are to be set and then met for 9 1 a sequence of groups of years, which I'll set out in 2 section 4.2A called: 3 "Carbon budgets leading to 2050". 4 Then, at section 5, you have some indication as to 5 how those carbon budgets should be set. We are not 6 concerned with that. 7 Section 10 tells us matters to be taken into account 8 in connection with carbon budgets. Of some relevance 9 here, section 10.2(i), at the foot of the page: 10 "To be taken into account are the estimated amount 11 of reportable emissions for international aviation and 12 international shipping." 13 But an important link at section 10.6 with 14 section 30 -- which I will take you to in a moment -- 15 which means that international aviation emissions are 16 not a necessary part of the setting of those budgets and 17 targets. 18 The simple point is they are not necessarily -- and 19 that is a point about section 30 -- counted as UK 20 emissions, but what we'll come to in a short moment is 21 the way in which that has been done electively. 22 Over the page, at section 30, you have the provision 23 that I signposted a moment ago, section 30(1): 24 "Emissions from greenhouse gases from international 25 aviation or international shipping do not count as 10 1 emission sources in the United Kingdom." 2 That is the basic framework of the Climate Change 3 Act. I put that down. 4 Then I pick up the narrative which is agreed within 5 the climate change annex of the statement of common 6 ground. You have this in volume 6, at tab 4. I pick it 7 up, if I may, at page 68 of your bundle. Paragraph 6, 8 page 68, introduces the Climate Change Act, which I have 9 just shown you. 10 Paragraph 7 introduces the statutorily based climate 11 change committee, which provides advice to government. 12 Section 8 explains what I have just taken you 13 through in the statute, which is the way in which 14 international aviation emissions are dealt with, and 15 explains the way in which they have electively and been 16 included within the calculation. 17 Then, at 9, 10 and 11, we get some conclusions from 18 all that, all of this in the agreed materials. 19 Paragraph 9: 20 "The CCC has also advised that emissions from UK 21 aviation should be no more than 2005 levels, that is 22 37.5 million of CO2 in 2050. This is referred to as the 23 planning assumption, but is sometimes called the 24 'aviation target'. A decision on whether to accept this 25 was deferred by the Framework Committee for 11 1 consideration as part of the emerging Aviation Strategy 2 to be adopted in 2019." 3 That is one of the things that is effectively 4 parked, or at least up in the air -- if you will pardon 5 the wording -- pending something which is yet to come, 6 the aviation strategy, and I will come to that a bit 7 more in a moment. 8 Then, at 10, 2009 report: 9 "The CCC gave its assessment of the actions required 10 to ensure that UK aviation emissions in 2050 don't 11 exceed 37.5 million tonnes of CO2." 12 Then, towards the foot of that paragraph, five lines 13 up, end of the line: 14 "The CCC state that if the aviation target and the 15 overall 2050 target were to be achieved aviation 16 emissions would account for around 25 per cent of the 17 UK's total allowed emissions." 18 So, we get a sense of the significance in the total 19 of UK allocation, as it were, of aviation. 20 Then, carrying that forward -- 21 LORD JUSTICE HICKINBOTTOM: Just to pause, part of the 22 reason that it is 25 per cent in 2050 is because 23 emissions from other sources are going to be reduced? 24 MR WOLFE: Exactly right, yes. And aviation emissions are 25 difficult to reduce other than by demand management. 12 1 LORD JUSTICE HICKINBOTTOM: So, at the moment, the 2 percentage is much, much less than that. 3 MR WOLFE: Yes. This is paragraph 11: 4 "The CCC advised that if aviation emissions amounted 5 to that figure and were included in the 2050 target then 6 this target could be achieved through reducing emissions 7 in other sectors by 85 per cent." 8 That is my Lord's point: 9 "In regard to this the CCC has said that reducing 10 emissions in other sectors in 2050 to 1990 levels is at 11 the limit of what is feasible with limited confidence 12 about the scope for going beyond that." 13 So, in effect, everything else is being squeezed 14 very hard and then the balance shifts, as my Lord has 15 rightly described. 16 I have mentioned there the Aviation Strategy, you 17 saw that mentioned in paragraph 9. If you can just put 18 that bundle down, if I may, and ask you to pick up 19 bundle 4, the witness statement of Caroline Low. Her 20 first witness statement is tab 1, page 186 of that, 21 paragraph 463. I won't take you through it. If you 22 could just make a note of it. Effectively, she is 23 explaining what the Aviation Strategy will do. In short 24 order, it is the mechanism by which the government is 25 intending to work out how to achieve the aspiration that 13 1 it so far set itself. 2 So, the simple point for the ANPS is that, at the 3 point the ANPS was designated, the government hadn't 4 a strategy for how to make aviation emissions fit within 5 the overall picture. That was yet to come. 6 If we put that down. 7 LORD JUSTICE HICKINBOTTOM: I am sorry to interrupt, and the 8 Aviation Strategy, at the moment, is expected this year, 9 but hasn't yet been produced. 10 MR WOLFE: I think that's right. But, obviously, I look at 11 this from a snapshot position of the ANPS last summer 12 rather than what may come. 13 LORD JUSTICE HICKINBOTTOM: No, I understand. 14 MR WOLFE: My Lord, can I then put that bundle down and pick 15 up the Paris Agreement and matters subsequent to that. 16 MR JUSTICE HOLGATE: Sorry, "fit within the overall 17 picture", do you mean fit within -- within what 18 precisely? 19 MR WOLFE: Well, within the matters that have been set out 20 in the earlier paragraphs in that statement of common 21 ground. Otherwise how aviation will reach the 37.5 22 million tonne equivalent within the overall 2050 23 aspiration, and so on. 24 MR JUSTICE HOLGATE: In other words, the target in the 2008 25 Act? 14 1 MR WOLFE: Exactly. 2 Picking it up, then, in legal materials bundle 1, 3 and in that, at tab 25, you have the Paris Agreement 4 dated December 2015, ratified by UK November 2016. 5 I will just show you a few brief provisions of it. 6 First of all, if you would, the preambles, there is 7 a "being parties pursuant" and then an "in pursuit of" 8 and then a "recognising", so effectively the fourth 9 preamble: 10 "Recognising the need for an effective and 11 progressive response to the urgent threat of climate 12 change on the basis of the best available scientific 13 knowledge. Also recognising the specific needs and 14 special circumstances of developing country parties, 15 especially those that are particularly vulnerable to the 16 adverse effects of climate change as provided for in the 17 Convention." 18 That is the UN framework convention. Then over the 19 page to the substance of the Paris Agreement itself. 20 Article 1 and 4 I am just going to touch on. 21 Article 2.1: 22 "This agreement in enhancing the implementation of 23 the Convention, including its objective, aims to 24 strengthen the global response to the threat of climate 25 change in the context of sustainable development and 15 1 efforts to eradicate poverty, including by [and this is 2 phraseology you have seen already in the Clean Growth 3 Strategy] holding the increase in global average 4 temperatures to well below 2 degrees C above 5 preindustrial levels and pursuing efforts to limit the 6 temperature increase to 1.5 degrees C above 7 preindustrial levels, recognising that this would 8 significantly reduce the risks and impacts of climate 9 change." 10 So, that is a ratcheting up, as it were, of the 11 recognition of the impacts and therefore of the 12 aspiration. 13 The aspiration is framed as holding the increase in 14 global average temperature well below 2 degrees and 15 pursuing efforts to limit. That is the clear direction 16 of travel. 17 LORD JUSTICE HICKINBOTTOM: In a sort of sentence, was the 18 reason for this because it had been 2 degrees for some 19 time on a global basis, was it an appreciation that at 20 2 degrees the amount of carbon dioxide would be, what? 21 MR WOLFE: I may have to come back to you to get the wording 22 exactly right. I don't want to characterise this 23 wrongly, but for my purposes it is a combination of 24 a recognition that things were happening more quickly 25 than they had been thought to be happening and the 16 1 impacts were greater, and therefore more needed to be 2 done. For my purposes, that is the level of detail 3 I need. If my Lord needs -- 4 LORD JUSTICE HICKINBOTTOM: No, I understand that. That was 5 the emerging science, that triggered this? 6 MR WOLFE: Science of what needs to be done, and 7 understanding of the impact of what hasn't been done so 8 far and what it might yet do. It is a combination of 9 things. 10 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 11 MR WOLFE: Article 4: 12 "In order to achieve the long-term temperature goal 13 set out in Article 2, parties aim to reach global 14 peaking of greenhouse gas emissions as soon as possible 15 [the first temporal point] recognising that peaking will 16 take longer for developing country parties, and to 17 undertake rapid reductions thereafter in accordance with 18 the best available science so as to achieve a balance 19 between anthropogenic [that's human] emissions by 20 sources and removals by sinks of greenhouse gases in the 21 second half of this century." 22 To put that in the colloquialism, that is net zero, 23 that is the balance between sources and sinks. 24 Picking up the point that my Lord raised with me 25 earlier on, in the context of aviation, that is sources 17 1 and sinks. Whereas in other areas you can reduce the 2 impacts and therefore sinks is less important. You will 3 see in a few moments, I will show you materials that 4 talk about aviation as a "hard to treat sector" 5 essentially for those reasons. 6 Then, at 4.3, if I may: 7 "Each party's successive nationally determined 8 contribution will represent a progression beyond the 9 party's then current nationally determined contribution 10 and reflect its highest possible ambition." 11 So, questions of timing, but also questions of 12 ambition and direction of travel. 13 If I put that bundle away, if I may. In terms of 14 what the CCC said about that, in bundle 13, tab 21, you 15 have an extract from the Committee on Climate 16 Change October 2016 report. The Secretary of State 17 places some emphasis on this. 18 What you have is the executive summary and a little 19 bit more. Under the executive summary, the Paris 20 Agreement -- 21 LORD JUSTICE HICKINBOTTOM: Sorry, could we have a page 22 number? These are not tabbed in. 23 MR WOLFE: Sorry, page 189. 24 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 25 MR WOLFE: Is it easier to have page numbers, rather than 18 1 tab numbers? 2 LORD JUSTICE HICKINBOTTOM: This doesn't have tab numbers in 3 for me. 4 MR WOLFE: I will give you page numbers: 5 "The Paris Agreement [page 189] marks a significant 6 positive step in global action to tackle climate change. 7 This report considers the domestic actions the UK 8 government should take as a part of a fair contribution 9 to the aims of the agreement. Our conclusions are as 10 follows: 11 "(1) Do not set UK emissions targets now." 12 Just pausing for a second. What follows is not in 13 any sense suggesting that the UK emissions targets are 14 going to be sufficient. There is just a suggestion that 15 you don't change them yet. 16 Three lines down: 17 "In line with the Paris Agreement, the government 18 has indicated it intends at some point to set a UK 19 target for reducing domestic emissions to net zero." 20 MR JUSTICE HOLGATE: Just coming to the last point, you are 21 saying that the there is no suggestion that the target 22 in the 2008 Act would not need to be revised. 23 MR WOLFE: Exactly right. 24 MR JUSTICE HOLGATE: It is tied back to that again. 25 MR WOLFE: Exactly right. It is don't do it yet. For 19 1 reasons that are set out here, which I may or may not 2 need to develop in detail. 3 Three lines down: 4 "In line with the Paris Agreement the government has 5 indicated it intends at some point to set a UK target 6 for reducing domestic emissions to net zero." 7 You will recall the net zero element: 8 "We have concluded it is too early to do so now, but 9 setting such a target should be kept under review." 10 Then second bullet: 11 "Vigorously pursue the measures required to deliver 12 on existing UK commitments and maintain flexibility to 13 go further." 14 If I just summarise what follows. That is because 15 there are issues with meeting current budgets, so don't 16 set new targets yet. That is the thrust of it. 17 Then third bullet: 18 "Set out a strategy for developing options to remove 19 greenhouse gases from the air." 20 It goes on to the point we talked about a moment 21 ago: 22 "Even with full deployment of known low carbon 23 measures some UK emissions will remain, especially from 24 aviation, agriculture and parts of industry." 25 Then, beyond the bulleted text, back to the main 20 1 text: 2 "We agree with the government's intention to set 3 a new target in the future [all Climate Change Act 4 targets] that reflects the global need to reach net zero 5 emissions." 6 Then, over the page, if I can just ask you to 7 sideline, I won't take you through it, on page 190, the 8 first couple of paragraphs: 9 "In December, UK ..." 10 Then: 11 "The agreement describes ..." 12 Then, just above paragraph 2, the one that starts: 13 "We welcome the government ambition ..." 14 Then, in the second line of that: 15 "The clear intention of the agreement is that 16 efforts should increase over time." 17 Then the first two bullets on page 191. They are 18 just more detail on the general thrust of what we have 19 seen so far. 20 Then, page 192, the last bullet point on that 21 sublist: 22 "Achieving net zero emissions of all greenhouse 23 gases on these timescales would require a combination of 24 further greenhouse gas removals and further 25 breakthroughs in hard to treat sectors." 21 1 That is aviation, as you have seen, includes 2 aviation. Going beyond those scenarios. 3 Then, that is developed further on page 193, top of 4 the page: 5 "Even with full deployment of known low carbon 6 technologies and behaviours some UK emissions will 7 remain, especially from hard to treat sectors: aviation, 8 agriculture and parts of industry." 9 So, aviation is a particular issue. 10 Then, on 194: 11 "Implications for UK policy priorities in the nearer 12 term." 13 It starts off by reminding us that: 14 "Current policy in the UK is not enough to deliver 15 [even] the existing carbon budgets that Parliament has 16 set. 17 Then it goes on to explain, but I won't take you to 18 it. It's more of what you have seen already, but in 19 more detail. But even that has to be ramped-up. 20 So, whilst the Committee on Climate Change says, 21 "Don't change the targets now", it is no way saying that 22 is the end of the story, and it is very clearly pointing 23 to the need to make changes later. 24 LORD JUSTICE HICKINBOTTOM: But that is to achieve zero 25 carbon by the end of the century. 22 1 MR WOLFE: It's to achieve all of the Paris obligations, 2 yes. It is to achieve Paris in its entirety. 3 LORD JUSTICE HICKINBOTTOM: Yes. 4 MR WOLFE: Then you have, in terms of the sequence of time, 5 the Clean Growth Strategy that I have already shown you, 6 which is in tab 22, that is page 197. 7 Then, the CCC's assessment of that, tab 24, same 8 bundle, which is page 243. Picking up slightly the 9 point my Lord has just raised with me. "Preparing for 10 2050", is the heading on page 245. Three lines down: 11 "However [end of the line] the Paris Agreement is 12 likely to require a greater ambition by 2050 and for 13 emissions to reach net zero at some point in the second 14 half of the century." 15 MR JUSTICE HOLGATE: This is the passage which is quoted in 16 the statement of common ground, paragraph 20, in which 17 you emphasise. 18 MR WOLFE: Indeed, indeed. It is therefore essential that 19 actions are taken now to enable these deeper reductions 20 to be achieved. 21 So, again, the Committee on Climate Change is not in 22 any way saying, "Sit back". 23 Then, over the page, just slightly below halfway 24 down the page is a slight repeat of all of that in 25 a slightly more expanded form, referring specifically to 23 1 the hard to treat sectors. Then, the process point that 2 says, in the next paragraph: 3 "In our advice on UK climate change action following 4 the Paris Agreement, the Committee recommended that the 5 government wait to set more ambitious long-term targets 6 until it had strong policies in place for meeting 7 existing budgets and the evidence base is firmer on the 8 appropriate level of such targets. 9 "The government has now published its strategy to 10 meet the legislated carbon budgets. Intergovernmental 11 panel on climate change will produce a special report on 12 the implication of the Paris Agreement 1.5 per cent 13 ambition in 2018." 14 We will come to that in a moment: 15 "At that point, the government should request 16 further advice from the committee on the implications of 17 the Paris Agreement for the UK's long-term emissions 18 target." 19 So, they are signposting two things. First of all, 20 the IPCC special reports and, secondly, suggesting to 21 the government that it seeks their views in the light of 22 that report. 23 We then pick up the story, if we could, please, in 24 the statement of common ground. That is again bundle 6, 25 tab 4, page 72. We have two paragraphs that are 24 1 chronologically out of sequence. So, if I start with 2 paragraph 25, if I may. So, it says this: 3 "The IPCC's report on the global implications of 4 crossing the threshold of 1.5 degrees C global warming 5 was commissioned by governments in 2015. The draft 6 report was reviewed by governments (around the world) 7 between 8 January and 25 February 2018. The final 8 report was not published until the 8 October, after the 9 designation." 10 So, what we have is the draft report was seen 11 confidentially by the government in January and February 12 of this year, again ahead of the ANPS, and then, as 13 I say, the sequence is wrong in this document. 14 Paragraph 23: 15 "On 17 April, the government announced at the 16 Commonwealth Heads of Government Meeting that after the 17 IPCC report later in the year, it will be seeking advice 18 from the CCC." 19 So, doing what the CCC suggested it did. 20 So, having seen the draft reports, the government 21 initiated the request for the formal advice from the 22 IPCC. 23 Mr Crosland has evidence -- I will leave him to deal 24 with it -- that the government was looking at further 25 drafts of the IPCC materials in June of last year, 25 1 shortly before the ANPS. But, for my purposes, I only 2 need to look at the January and February dates. 3 That was the emerging picture ahead of the ANPS 4 designation. 5 I'll come back to that in the context of the debate 6 about discretionary relief and so on, which you will 7 have seen. 8 If I could then pick it up, if I may, in volume 8, 9 the government's consultation response. We are now at 10 the moment of production of the ANPS. We have this in 11 tab 10, volume 8, starting at page 463. Page 463 is the 12 beginning of it. If I could ask you to turn to 13 page 528. This is the section dealing with carbon 14 emissions. I just want to show you two paragraphs, if 15 I may. 16 First of all, state the obvious, this is dealing 17 with carbon and only carbon. 18 8.6: 19 "The airports ANPS clearly sets out a number of 20 measures the government expects any scheme promoter to 21 take in order to limit the carbon impact of the project, 22 including the use of zero or low emission hybrid or 23 electric vehicles and the reduced engine taxiing. The 24 airports NPS also states that any increase in carbon 25 [emphasise carbon] emissions alone is not a reason to 26 1 refuse development consent, unless the resulting 2 increase from the project is so significant it would 3 have a material impact on the ability of the government 4 to meet its domestic and international carbon reduction 5 targets." 6 I asked you to underline the next few words because 7 they don't actually appear in the equivalent paragraph 8 in the ANPS, as I will show you in a moment. 9 Then, at 8.47, if I may, page 534: 10 "The government has concluded that given the range 11 of policy measures available, expansion at Heathrow 12 Airport is compatible with the UK's climate change 13 obligations. The matter of UK wide policy in relation 14 to aviation emissions will be considered in developing 15 a new Aviation Strategy." 16 So, a number of points. Is compatible, it's 17 representing a conclusion or an outcome of an 18 evaluation. UK climate change obligations, and then 19 rightly signposting that this is notwithstanding the 20 fact that we don't yet have an aviation strategy. 21 That is relevant for the submissions I will make in 22 a few moments in relation to ground 1 on the extent to 23 which matters have been settled or not by the ANPS ahead 24 of the DCO stage. I will show you that in a second, if 25 I may. 27 1 If I can then ask you to put that bundle away and go 2 to bundle 6 for the ANPS itself. You have that in tab 7 3 of bundle 6. 4 Chapter 3 deals with the government's preferred 5 scheme. This is page 222, "Heathrow northwest runway". 6 Paragraph 3.7, picking up the point I showed you in the 7 consultation report: 8 "The government's agrees with the Airports 9 Commission assessment that a new runway is deliverable 10 within the UK climate change obligations." 11 Then, in 3.61, the section here starts with 12 a heading "Carbon emissions", this is page 233. It is 13 the start of that section. Within that section, at 14 paragraph 3.66: 15 "This further analysis reinforces the conclusion 16 that any one of the three shortlisted schemes could be 17 delivered within the UK's climate change obligations." 18 Again, expressing a conclusion on what can be done, 19 and at that point reference to climate change 20 obligations. 21 Then 3.69: 22 "The government has considered this further analysis 23 and concludes that both the expansion via a northwest 24 runway at Heathrow Airport (as its preferred scheme) can 25 be delivered within the UK's obligations and that the 28 1 scheme is the right choice ... " 2 So, my point is that can be delivered within in the 3 UK carbon obligations. 4 So, expressing a conclusion on what can be done, 5 skipping, as you have seen in different passages, 6 between referring to carbon obligations and climate 7 change obligations. At the risk of overstating the 8 obvious, the Climate Change Act is concerned with 9 carbon, the climate change obligations are wider than 10 that. 11 You then have chapter 4. 12 LORD JUSTICE HICKINBOTTOM: Can you say that again, please? 13 I am trying to follow it on the transcript: 14 "The Climate Change Act is concerned with carbon..." 15 And then you said? 16 MR WOLFE: Whereas climate change picks up other things. 17 So, climate change -- so, Paris, for example, isn't 18 focused on carbon, it is focused on impact, if you like. 19 Chapter 4, "Assessment principles". Within that, 20 that obviously covers a whole range of things. 21 Page 244, the assessment section of the ANPS in 22 relation to climate change is headed on page 244: 23 "Climate change adaptation." 24 Importance of the word "adaptation" because 4.41 25 says this: 29 1 "The Planning Act 2008 requires the Secretary of 2 State to have regard to the desirability of mitigating 3 and adapting to climate change in designating an NPS." 4 Footnote 125 directs one to section 10(3)(a) of the 5 Planning Act, and that is a faithful account of what 6 that provision requires. But, as you see -- and 7 relevant to our case -- it requires regard to be had to 8 desirability of mitigating and adapting. Whereas what 9 we have in this section, 4.41 to 4.52, focuses 10 entirely -- and no criticism obviously about focusing on 11 this -- to adaptation. 12 But what is missing from the document entirely is 13 any evaluation in relation to the second limb of 14 section 10(3)(a), the desirability of mitigating, and 15 that is the underpinning of our ground 2. 16 Then you have chapter 5, assessment of impacts, and 17 within that the relevant section is on page 261. The 18 heading is: 19 "Carbon emissions." 20 Within that, the first sentence says this: 21 "The Planning Act 2008 requires that a national 22 policy statement must give reasons for the policy set 23 out in the statement and an explanation of how the 24 policy set out in the statement takes account of 25 government policy relating to the mitigation of and 30 1 adaptation to climate change." 2 Footnote 162, the Planning Act 2008, section 5(8). 3 So, again, a fair summary of the Planning Act 4 obligation. 5 This section then purports to set out the 6 explanation for how the ANPS deals with existing 7 government policy. 8 Plainly, Mr Crosland has a critique of it because he 9 says it wrongly focuses on the Climate Change Act. We 10 don't take that point because we accept that government 11 policy is indeed focused on the Climate Change Act. 12 That is just to signpost the distinction between us. 13 However, this section nonetheless goes on to say, in 14 the next part of 5.69: 15 "The government has a number of international and 16 domestic obligations to limit carbon emissions. 17 Emissions from both the construction and operational 18 phase of the project will be relevant to meeting these 19 obligations." 20 So, that leaks in a slightly -- a completely 21 unexplained way, away from the domestic obligations. 22 But then in 5.71, returns to the topic -- 23 MR JUSTICE HOLGATE: Sorry, I put a question mark against 24 that preceding sentence: 25 "The government has a number of international and 31 1 domestic obligations." 2 What are the international obligations? 3 MR WOLFE: We would essentially say Paris, but there is the 4 UN framework, convention and so on. 5 MR JUSTICE HOLGATE: It is not obligation, therefore, used 6 in a legal sense? 7 MR WOLFE: I wouldn't want to say. It is whatever the court 8 makes it. 9 MR JUSTICE HOLGATE: The Paris Agreement doesn't have legal 10 force, does it? 11 MR WOLFE: It doesn't have legal force in the sense that it 12 is not part of our domestic law, no, which is a point 13 Mr Maurici makes, but we say it doesn't make any 14 difference here. 15 MR JUSTICE HOLGATE: So, it follows that sentence is not 16 just focusing on matters of law. 17 MR WOLFE: It is still an international obligation. 18 MR JUSTICE HOLGATE: Exactly. 19 MR WOLFE: Yes, yes. Not matters of domestic law. 20 Paragraph 5.71, the UK's obligations on greenhouse 21 gas emissions are set out under the 2008 Climate Change 22 Act. So, whatever is said in 5.69 is then narrowed in 23 5.71. 24 Then, over the page, under the heading: 25 "Applicant's assessment." 32 1 Above 5.76: 2 "Pursuant to the terms of the Environmental Impact 3 Assessment Regulations the applicant shall undertake an 4 assessment of the project as part of the environmental 5 statement, to include an assessment of the likely 6 significant climate change factors. The applicant 7 should provide evidence of the carbon impact of the 8 project, both from a construction and operation, such 9 that it can be assessed against the UK government's 10 carbon obligations, including but not limited to carbon 11 budgets." 12 So, carbon obligations would appear to be 13 a reference to Climate Change Act, but not limited to 14 carbon budgets, not clear what that is. 15 Then facing page 263, paragraph 5.82, heading, 16 "Decision making": 17 "Any increase in carbon emissions alone is not 18 a reason to refuse development consent, unless the 19 increase in carbon emissions resulting from the project 20 is so significant it would have a material impact on the 21 ability of government to meet its carbon reduction 22 targets, including carbon budgets." 23 I will come back to that because it's lack of 24 clarity, we say, in that, which undermines the 25 section 5(8) compliance of this section. 33 1 The simple position that then appears from 5.82 is 2 the setting of some sort of test -- 3 MR JUSTICE HOLGATE: Just forgive me for a moment, trying to 4 keep up with you. That material impact phrase in 5 line 3, does that reflect the language used in the 6 consultation response document? 7 MR WOLFE: It does. This is a paragraph I said was 8 different. It does, but the difference in that 9 paragraph -- it is page 528, in bundle 8, if you want to 10 look at it. 11 MR JUSTICE HOLGATE: Yes. 12 MR WOLFE: 8.6. So, it is the second long sentence of 8.6, 13 in which I asked you to underline the words "and 14 international carbon reduction targets". So, what was 15 contemplated, promised by the response, isn't what we 16 end up with in the text. 17 MR JUSTICE HOLGATE: It is not the material impact 18 phraseology which is materially different, it is the 19 targets, which are in target? 20 MR WOLFE: Yes. My Lord is right to pick me up, and in 21 a sense I would pass the buck on when is something 22 a target and when is it an obligation, and so on. 23 Without wishing to grind back through all of those 24 things, that phraseology moves around. 25 LORD JUSTICE HICKINBOTTOM: Did Paris impose a carbon 34 1 reduction target? 2 MR WOLFE: No, not targets as such. You have seen what it 3 imposed. In a sense, that is part of the critique of 4 it, if you like. 5 LORD JUSTICE HICKINBOTTOM: It imposes an outcome. 6 MR WOLFE: An outcome and a direction of travel, and 7 aspirations and tells you to behave in certain ways, but 8 it doesn't give anybody numeric targets in that sense. 9 The target is a macro one, if you like. It is the 10 1.5 degree and it is the 2 degree and so on. 11 LORD JUSTICE HICKINBOTTOM: It is an outcome. 12 MR WOLFE: I used the word "outcome" and "target" in the 13 same way there, but it is not a target on any particular 14 state. 15 You then have, in bundle 6, within the statement of 16 common ground, tab 3. This is the main statement of 17 common ground, rather than the climate change annex. 18 Page 42. 19 You have extensive quotes from -- which is why 20 I haven't taken you to the original -- a letter and then 21 a reply from the climate change committee. So, the 22 letter, it is at paragraph 96, shortly following the 23 ANPS designation Lord Deben chair of the Committee on 24 Climate Change, the deputy chair, Baroness Brown, wrote 25 to the Secretary of State drawing together -- you see 35 1 the two sentences in that quote at the bottom of 2 page 42 -- the two different things. Climate Change Act 3 and Paris. 4 Then the text continues at the top of page 43: 5 "We were surprised that your statement to the House 6 of Commons on the national policy statement made no 7 mention of either of these commitments. It's essential 8 aviation's place in the overall strategy for UK 9 emissions reduction is considered and planned fully by 10 your department." 11 There is a little bit of dancing around, where they 12 are talking about the words spoken by the Secretary of 13 State, as opposed to the document he produced. Let's 14 not worry about that. The simple point is that mention 15 is made of the Climate Change Act, but not of Paris. 16 Paragraph 97 is then an extract from the Secretary 17 of State's response. Second paragraph of that starts 18 with the words "The proposed": 19 "The proposed airports NPS is clear, that an 20 increase in carbon emissions that would have a material 21 impact on the ability of government to meet its carbon 22 reduction targets would be a reason to refuse 23 development consent for a runway." 24 So, that is picking up the language of 5.82, but 25 flipping it round, because 5.82 talked in terms of 36 1 material impacts, anything less than material impacts 2 not being a reason for refusal. This flips that round 3 and says it would be a reason for refusal. 4 Then, at the foot of page, there is a paragraph 5 which picks up what you have seen already, which is the 6 signposting to the Aviation Strategy coming down the 7 track. That is at the ANPS itself and the immediate 8 aftermath of it. 9 To look at Ms Low's evidence, if you would, that is 10 in volume 4, tab 1, page 183. It is the start of her 11 section on climate change. Then there is a heading, 12 "Carbon policy", above paragraph 454, and then 13 a heading, "Climate Change Act 2008 carbon budgets". 14 Then, over the page, at paragraph 458 and 459, I just 15 want to look at. She goes back to October 2016 and the 16 climate change committee: 17 "In October 2016 the climate change committee said 18 that the Paris Agreement [put paragraph 458] is more 19 ambitious both than the ambition underpinning the UK 20 2050 target and previous international agreements, but 21 that the UK should not set new UK emissions targets now 22 as it already has stretching targets and achieving them 23 will be a positive contribution to global climate 24 action. Further, the CCC, acknowledging the context of 25 separate legal action brought by Plan B against the 37 1 Secretary of State for Business, Energy and Industrial 2 Strategy, that it is possible that the existing 2050 3 target could be consistent with the temperature 4 stabilisation goals [I think that is a mistake, it 5 should say goal] set out in the Paris Agreement." 6 My Lord will recall the stabilise at 2 degrees 7 pursue, then measures to 1.5. So, when she is referring 8 to the stabilisation goal, that can only been the first 9 of those and it should be in the singular. I think 10 Mr Crosland is going to deal more fully with that: 11 "Subsequently, in establishing its carbon 12 obligations for the purpose of assessing the impact of 13 airport expansion, my team has followed this advice and 14 considered domestic legal obligations as the correct 15 basis for assessing the underlying carbon impact of the 16 project." 17 And: 18 "It is not appropriate at this stage for the 19 government to consider any other possible targets that 20 could arise through the Paris Agreement." 21 So, that is the explanation for the focus only on 22 existing carbon targets in the Climate Change Act, 23 albeit -- as you will see shortly -- that the Secretary 24 of State's case is that actually, legally, they collapse 25 into the same thing anyway. That is important for a 38 1 submission we will come to in a few moments. 2 Then you get a bit more process explanation from the 3 witness: 4 "In April 2018, the Minister of State for Energy and 5 Clean Growth announced the government would ask the CCC 6 to provide advice on the implications for the 2050 Paris 7 Agreement for the UK's long-term emissions reduction 8 targets. The minister advised that the advice would be 9 sought after the Intergovernmental Panel On Climate 10 Change published its report on the global implications 11 of the 1.5 degree C target. The IPCC's report was 12 published on 8 October, and the Minister of State for 13 Energy and Clean Growth subsequently wrote a letter to 14 the CCC on 15 October asking for its advice by the end 15 of March 2019. Specifically, the government has asked 16 the CCC to provide advice on ..." 17 Then there is a bullet point list of various obvious 18 things flowing from all that, what more should we do? 19 Obviously, those matters, the last bit of that 20 post-dates the ANPS designation. But, as we saw before, 21 the ANPS was designated in the middle of a period where 22 thinking was rapidly evolving. 23 What we have -- and I'll take my Lord -- and I think 24 my Lord, Mr Justice Holgate, is more familiar with the 25 background of this than my Lord, 39 1 Lord Justice Hickinbottom because it featured in the 2 pre-trial process was where that sits in the terms of 3 the evidence in the litigation. 4 LORD JUSTICE HICKINBOTTOM: By the way, if you are about to 5 leave this page, you took us to 448, line 4. The CCC's 6 acknowledgement in the context of separate legal action. 7 The footnote 111, and I have seen somewhere in the 8 bundle this is the claimants' reply to the summary 9 grounds. 10 MR WOLFE: I think that's not us, if that is what you 11 are ... 12 LORD JUSTICE HICKINBOTTOM: In seeing where that statement 13 comes from, the sole source, as I understand it, is ... 14 MR JUSTICE HOLGATE: That is the CCC's reply when you look 15 at the documents. 16 MR WOLFE: It is wrongly attributed, I think. 17 LORD JUSTICE HICKINBOTTOM: It is the CCC's reply. Was it 18 dated about July 2018? 19 MR WOLFE: I look to Mr Crosland. 20 LORD JUSTICE HICKINBOTTOM: It is in the context of 21 a permission hearing. 22 MR WOLFE: Exactly right. 23 LORD JUSTICE HICKINBOTTOM: We'll come to that. 24 MR WOLFE: We'll come to that. 25 But, we say, in a sense that doesn't matter, for 40 1 reasons I will develop shortly, in any event. 2 My Lord, so that is the, as it were, the evolution 3 of the thinking. 4 The simple point -- which I will come back to -- is, 5 at the point of the designation of the ANPS, there was 6 very clearly emerging thinking on the implementation of 7 the Paris Agreement. Well postdating what the climate 8 committee had said in 2016, picking up events in the 9 early part of that year, including the drafts of the 10 IPCC reports. I will come back to that in a moment. 11 So, that's the factual foothills of the submissions. 12 If I can then turn to ground 1 of our submissions. 13 My Lord, these are picked up from my skeleton, 14 paragraphs 10 to 19. We can put that bundle away and 15 pick up legal materials bundle 1, and go within it, 16 please, to tab 8, Planning Act. 17 LORD JUSTICE HICKINBOTTOM: Can you give me the reference 18 again? 19 MR WOLFE: Bundle 1, tab 8. 20 LORD JUSTICE HICKINBOTTOM: Thank you. 21 MR WOLFE: Section 5, if we could. So, the issue here is 22 how the ANPS dealt with existing government policy, in 23 other words, Climate Change Act. 24 What we have is a series of obligations in 25 section 5, section 5(1): 41 1 "The Secretary of State may designate a statement as 2 a national policy statement for the purpose of this Act 3 if the statement ..." 4 And there is some procedural stuff. That is 5 obviously the primary function being discharged here. 6 You then have 5(3): 7 "Before designating must carry out an appraisal of 8 sustainability." 9 So, there is a second function being discharged 10 there. 11 Then, over the page, 5(7) and 5(8), which link 12 together: 13 "A national policy statement must give reasons for 14 the policy set out in the statement." 15 Then 5(8) gives further colour to that: 16 "The reasons must in particular include an 17 explanation of how the policy set out in the statement 18 takes account of government policy related to the 19 mitigation of and adaptation to climate change." 20 We are concerned with the discharge or not of 21 section 5(8). 22 The distinction I have already mentioned between our 23 position and that of Mr Crosland is what is meant for 24 these purposes by government policy relating to 25 mitigation and adaptation of climate change. He says, 42 1 in a nutshell, this is a duty that should have picked up 2 Paris and following. We say not so. We agree with the 3 Secretary of State, as it happens. 4 Just to put that bundle down, and then turn back, if 5 you would, to the ANPS itself. 6 First of all, can I remind you of the passage in the 7 consultation materials which I showed you. It is 8 bundle 8, page 534, paragraph 8.47, the conclusion of 9 compatibility, which was then echoed in the ANPS itself. 10 LORD JUSTICE HICKINBOTTOM: Can you give the reference 11 again? Are you doing this from a speaking note? 12 MR WOLFE: I am. Bundle 8, tab 10, page 534, page 8.47. 13 I have shown it to you already. That is the paragraph 14 in the consultation response that stated the conclusion. 15 LORD JUSTICE HICKINBOTTOM: Are all these references in the 16 skeleton when we go back? 17 MR WOLFE: They should be. 18 LORD JUSTICE HICKINBOTTOM: Hopefully in the same sequence. 19 MR WOLFE: They should be broadly in the same sequence. 20 Then you have in volume 6, tab 7, the ANPS you have 21 seen already. 22 Our first concern -- we have several concerns and we 23 take them in turn -- about the extent to which the ANPS 24 has lawfully discharged the obligation to explain how it 25 deals with government policy, relates to the interplay 43 1 between the conclusions on compatibility and what is 2 said about the need to assess. 3 So, you have at 3.7 -- I have shown this to you 4 already -- the government agreeing that a new runway is 5 deliverable within the underlying climate change 6 obligations. 7 At 3.66, conclusions that it can be delivered within 8 the UK's climate obligations. 9 3.69, that it can be delivered within the carbon 10 obligations. So, you have three different places 11 saying -- slightly different in their detail, but 12 essentially the same point, reaching a conclusion on 13 compatibility. 14 What is not clear from that -- in explaining how it 15 deals with government policy -- is what it leaves open 16 for consideration at the DCO stage. In other words, how 17 does this explain how this ANPS has dealt with 18 government policy in that regard? 19 The tension is with paragraph 5.82, which you have 20 seen under the heading: 21 "Decision making." 22 On page 263, which is the material impact on the 23 ability point. 24 We say what is not clear -- as it needed to be to 25 give effect to section 5(8) -- is whether, when it comes 44 1 to the DCO stage, the inspector and the decision-maker 2 are to proceed on the basis that this is compatible, as 3 it were, tick or whether it is no. 4 LORD JUSTICE HICKINBOTTOM: Sorry, whether what is 5 compatible? 6 MR WOLFE: I'm sorry? 7 The development, the Heathrow third runway. So, the 8 three paragraphs, 3.7, 3.66 and 3.69, all express 9 a conclusion of compatibility with climate change 10 obligations. 11 LORD JUSTICE HICKINBOTTOM: Yes. 12 MR WOLFE: The question is: how does that sit, when we come 13 to the DCO, with what is said at 5.82? 14 Because the section 5(8) obligation on the ANPS was 15 to explain how it dealt with government policy and what 16 we say is it hasn't sufficiently explained whether it is 17 saying that this is compatible with government policy, 18 as it appears to say in three places, or whether it is 19 saying that is an open question. 20 MR JUSTICE HOLGATE: They are different legal questions 21 though, aren't they? 22 One is whether or not there is a compliance with the 23 duty to give reasons under section 5(8), and the other 24 is a separate question, whether or not that duty has 25 been complied with, as to what remains open for 45 1 legitimate objection at the DCO stage. 2 MR WOLFE: Yes, absolutely right, my Lord, but the second of 3 those is the practical concern. The first of those is 4 the legal obligation. 5 We say that by being uncertain about what is left 6 over, in relation to those four paragraphs, if you like, 7 this has not properly, for section 5(8) purposes, 8 explained how it deals with this aspect of government 9 policy. 10 LORD JUSTICE HICKINBOTTOM: When you use the word 11 "compatibility", isn't the word "capability", which is 12 used in places, the real concept that's captured? 13 That is that the third runway is capable of being 14 constructed within these various targets, but whether it 15 will comply, as to being capable of complying, will 16 depend upon the details of the application and the DCO, 17 won't it. 18 MR WOLFE: If we are wrong, then so be it, but our legal 19 proposition is this fails to discharge the section 5(8) 20 obligation. The court may say, "No, you are wrong. It 21 is sufficiently clear. This is what it means", in which 22 case that is that. 23 But our proposition -- and there are four more 24 points to make of a similar nature -- is that this does 25 not sufficiently or lawfully discharge the 5(8) 46 1 obligation because it doesn't properly explain that 2 position. 3 The practical effect of that -- not the legal 4 implications, but the practical effect of that -- is 5 what is left to be debated down the track. 6 The Secretary of State says, in effect, we're wrong. 7 It is clear, and what is clear is that it is up for 8 debate at the later stage. So, we may be wrong. 9 LORD JUSTICE HICKINBOTTOM: Quite, yes. 10 MR WOLFE: My Lord, that's issue number one, as it were, 11 problem number one. 12 MR JUSTICE HOLGATE: Where does this fit within the list of 13 issues that we have to determine? I just want to make 14 sure we can follow. 15 MR WOLFE: It is all within the -- 16 MR JUSTICE HOLGATE: We have quite a number. 17 MR WOLFE: Issue number 14. 18 MR JUSTICE HOLGATE: Yes, because it would be very helpful 19 if you could use that list because we may well want to 20 use it in due course. There are quite a few numbered 21 issues under climate change. 22 MR WOLFE: This is issue 14 if that helps your road map. 23 LORD JUSTICE HICKINBOTTOM: I don't want to spend very long 24 on my point because, as you say, your submission is 25 either good or not. But the way I read this was in 47 1 terms of a capability. I didn't see how it could 2 possibly say that it was certainly going to comply, full 3 stop. Whatever the details of the application of the 4 DCO might be, it would certainly comply. It seemed to 5 me to be -- 6 MR WOLFE: If that's the court's reading of it and it is 7 sufficiently clear, then that is the end of it and 8 I will move on. But our observation, our proposition is 9 it is not sufficiently clear. I may be wrong about 10 that. 11 LORD JUSTICE HICKINBOTTOM: I understand. 12 MR WOLFE: Problem number 2 -- and the other ones all relate 13 to the content of 5.82. 14 MR JUSTICE HOLGATE: Sorry, forgive me, I would like to go 15 to the list of issues. This seems to be 14.1; is that 16 right? 17 This is volume 6, I think one of the early tabs. 18 Page 6. 19 MR WOLFE: Yes. 20 MR JUSTICE HOLGATE: That raises two questions: one is the 21 planning assumption, and the other is the 2050 target. 22 One is a matter of policy, the other is a matter of law. 23 MR WOLFE: Yes. 24 LORD JUSTICE HICKINBOTTOM: My Lord is right. Your 25 submission goes to 14.1, that is the issue we are on. 48 1 MR WOLFE: Exactly right. 2 LORD JUSTICE HICKINBOTTOM: Yes. 3 And 14.2. 4 MR WOLFE: And 14.4 as well, yes. 5 LORD JUSTICE HICKINBOTTOM: The whole of 14. It is the 6 whole of 14. 7 MR WOLFE: I started with the whole of 14, rather than 8 trying to slice it up. 9 What I hope you will find in our skeleton is that 10 there are five more points, of which four we fall into 11 agreement with the Secretary of State on, but they are 12 set out in sequence in our skeleton with the exchange 13 I am about to take you through, which I hope can be done 14 quite quickly because there are four more similar 15 points. 16 Problem number 2, and these all relate to 17 paragraph 5.82, our friend under the decision making 18 section. 19 In terms of the compliance with the statutory 20 obligation to explain, what is meant by the words 21 "carbon reduction targets" in 5.82, and in particular, 22 does that mean the carbon reduction targets at the time 23 of the designation of the ANPS, or the carbon reduction 24 targets as they happen to appear, or as they have 25 evolved, at the time of the DCO? 49 1 Now, Ms Low, and she's the witness who deals with 2 this -- page 283, this is tab 1, in volume 4 -- she has 3 a helpful table, printed sideways. 4 LORD JUSTICE HICKINBOTTOM: Sorry, 1, page 283? 5 MR WOLFE: Yes, indeed. It is volume 4, tab 1, page 283. 6 Paragraph 40, she is responding to a paragraph 40. 7 Then the right-hand column is her answer. It's the 8 lower text, bottom right-hand corner of page 283. She 9 says: 10 "The airports ANPS is clear that any applicant will 11 have to demonstrate how its project can be delivered 12 compatibly with the UK's carbon obligations depending on 13 the available evidence and the applicable policy 14 framework in place at the time it makes an application." 15 We say it is not clear -- 16 MR JUSTICE HOLGATE: This is a question of interpretation 17 for the court, is it? 18 MR WOLFE: It is a question of is 5.82 sufficiently clear in 19 answering that question? In other words, the ambiguity 20 about timing. So, in a sense, it is an interpretation 21 question for the court. 22 If the court thinks it is clear and the answer is 23 clear one way or the other, then it can say so. If the 24 court thinks it is unclear, as we express our concern 25 that it is -- 50 1 LORD JUSTICE HICKINBOTTOM: That would mean a policy which 2 is incapable of being interpreted, which is a very 3 unusual situation. 4 MR WOLFE: Except the statutory obligation is to explain. 5 The statutory obligation in 5(8) is to explain how it 6 has dealt with the government policy. That is the 7 obligation we have in play. It is effectively a reasons 8 obligation. 9 MR JUSTICE HOLGATE: You say, I think rightly, with respect, 10 it is a matter of interpretation for the court, but in 11 fact the Secretary of State says it is clear. 12 MR WOLFE: Exactly right. 13 LORD JUSTICE HICKINBOTTOM: If the court agrees that it is 14 clear, that is, as it were, the end of your legal point. 15 MR WOLFE: As it happens, we are happy with his answer. We 16 like his answer. 17 LORD JUSTICE HICKINBOTTOM: I understand that, yes. 18 MR JUSTICE HOLGATE: The normal approach when you are 19 interpreting a policy like this is to apply as at the 20 date when you are reaching a decision on a planning 21 application, not some historical sort of artificial 22 basis. 23 MR WOLFE: If that's the answer, then -- 24 MR JUSTICE HOLGATE: That is the art of taking into account 25 material considerations. 51 1 MR WOLFE: If that is the answer and that text has 2 sufficiently discharged its section 5.82 obligation, 3 then so be it. 4 Then, similarly, in relation to 5.82, our 5 question -- it does slightly go back to the language we 6 have looked at, the distinction between 5.82 and the 7 paragraph in the consultation response -- what is 8 included within the range of 5.82? In other words, is 9 that only the Climate Change Act obligations or does it 10 go beyond that, potentially into international 11 obligations? 12 My Lords will recall that is the way the 13 consultation response put it. 14 The Secretary of State's case -- and this comes from 15 the Secretary of State's amended detailed grounds of 16 resistance, which you have in volume 1, tab 17, at 17 page 510. 18 The Secretary of State says -- this is 19 subparagraph 2, on page 510 -- that it is referring -- 20 so the underlying text is our critique and the not 21 underlined text is the Secretary of State's response. 22 He says this: 23 "Paragraph 5.82 of the ANPS is referring to the 24 targets set up at CCA at 2008. This is evident from 25 paragraph 5.71 of the ANPS, which states that ..." 52 1 LORD JUSTICE HICKINBOTTOM: Sorry, can you just tell me 2 where you are again? 3 MR WOLFE: Middle of page 510. 4 LORD JUSTICE HICKINBOTTOM: Right, thank you. Whereabouts? 5 Is that paragraph 2? 6 MR WOLFE: Paragraph 2, the underlying element is our 7 critique or our concern. When it follows on from that, 8 the Secretary of State's response: 9 "Paragraph 5.82 is referring to the targets set out 10 at CCA 2008. This is evident from paragraph 5.71 of the 11 ANPS, which states that the UK's obligations on 12 greenhouse gas emissions are set out under the 2008 13 Climate Change Act. 14 The difficulty with that -- if we go back to the 15 ANPS itself, volume 6, tab 7 -- is that whilst 5.71 does 16 state that, the earlier paragraph, 5.69, that I showed 17 you, talks in wider terms. 18 LORD JUSTICE HICKINBOTTOM: So, you are comparing 5.82 with 19 5.71? 20 MR WOLFE: And 5.69. 21 LORD JUSTICE HICKINBOTTOM: The point you make is that the 22 earlier passages are wider than the 2008 Act. They 23 could include, for example? 24 MR WOLFE: Paris and who knows what, exactly. 25 LORD JUSTICE HICKINBOTTOM: But does Paris impose any limit 53 1 on carbon emissions? 2 MR WOLFE: No, not as such, but what we are concerned 3 with -- I am sorry to have the same mantra. What we are 4 concerned about is meet its carbon reduction targets, 5 including carbon budgets. 6 Again, if that is to be read narrowly as CCA only, 7 so be it. The Secretary of State's answer is to draw 8 the reader back to 5.71. 9 LORD JUSTICE HICKINBOTTOM: I understand your point. Your 10 point is that in 5.69, as a matter of construction, 11 international obligations must mean something. 12 MR WOLFE: Yes. 13 LORD JUSTICE HICKINBOTTOM: That is your point. 14 MR WOLFE: Yes. 15 They aren't complicated points. 16 LORD JUSTICE HICKINBOTTOM: No. 17 MR WOLFE: My Lord, I am nearly there, if the shorthand 18 writers can give me a couple of minutes, I will finish 19 this ground. 20 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much, 21 Mr Wolfe. 22 MR WOLFE: The next point is whether international aviation 23 emissions are included within that or not. Again, still 24 5.82. Does that include the international aviation 25 emissions? Because you have seen the to and fro on 54 1 whether aviation emissions are included in the statutory 2 materials. They are not part of the UK's carbon 3 account. Part of the tension here, or the tease here, 4 arises from 5.72, which explains that, which explains 5 that international aviation emissions are not currently 6 included within the net carbon account. 7 The question is: are they in or out for 5.82 8 purposes? 9 Again, Caroline Low, volume 4, tab 1, page 284, 10 row 44. Second part of the answer column: 11 "We would therefore expect emissions from 12 international aviation to be included." 13 So, that is the government's expectation, and it is 14 obviously an expectation with which we are happy. It is 15 not clear, we say, from 5.82. 16 LORD JUSTICE HICKINBOTTOM: Yes. 17 MR WOLFE: Then a final point, again on 5.82: 18 "Is material impact so significant it would have 19 a material impact on the ability of the government to 20 meet its carbon reduction targets?" 21 The Secretary of State, this final example, doesn't 22 offer any further elaboration on that. We say that is 23 not a sufficient, for section 5(8) purposes, explanation 24 of the way this is dealt with, government climate change 25 policy, because we don't know what "material impact" 55 1 means. For example, does it mean more than trivial or 2 does it mean substantial? 3 It leaves a huge elasticity, which we say amounts to 4 a failure, under section 5(8), properly to explain how 5 this deals with government, or whatever the reach is, 6 climate change targets. 7 My Lords, those are the submissions on ground 1, and 8 that may be a convenient moment. 9 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much, 10 Mr Wolfe. 11 (11.30 am) 12 (A short break) 13 (11.40 am) 14 LORD JUSTICE HICKINBOTTOM: Mr Wolfe, just before you start 15 again, you are going at a fair pace, about which we have 16 no issue at all, but it is being transcribed. 17 I just wanted to make sure that the transcriber was 18 able to keep up with this because the transcription is 19 going to be quite important for when we come to write 20 the judgment, and in particular the references in the 21 transcript. 22 So, firstly, I wanted to make sure the transcriber 23 was managing to keep up sensibly and, secondly, if you 24 are using a note, it may be helpful, at least to the 25 transcriber -- it may be helpful to us -- particularly 56 1 for the references. 2 MR WOLFE: I can certainly do that, my Lord. 3 LORD JUSTICE HICKINBOTTOM: Do you have a spare copy? 4 MR WOLFE: I can dig one out by the end of the morning, 5 certainly. 6 LORD JUSTICE HICKINBOTTOM: You are finishing by the end of 7 the morning. 8 MR WOLFE: Do you want it now? 9 LORD JUSTICE HICKINBOTTOM: If you have one, it may help the 10 transcriber. It is mainly for the references, which are 11 quite important. 12 MR WOLFE: Of course. 13 (Handed) 14 My Lord, ground 2, this deals with the obligations 15 arising under section 10 of the 2008 Act. 16 If you could pick up volume 1 of the legal 17 materials, go back to the Planning Act, which is in 18 tab 8 ... 19 (Pause) 20 I have shown you, within section 5, that there are 21 a number of functions being discharged. 5(1), may 22 designate. 5(2), appraisal of sustainability in 23 particular. 24 You then have, in section 6, the review obligations. 25 Again, a number of functions being discharged. 6(1), 57 1 must review in specified circumstances. 6.(3), in 2 deciding when to review a national policy statement, and 3 6(4) in deciding when to review part of a national 4 policy statement. Then, 6(5) is the, after reviewing, 5 either amend, withdraw or leave as is. 6 So, a number of functions spread through 5 and 6. 7 That is relevant when we get to section 10. If you 8 could turn that up, please. Section 10(1). This 9 section applies to the Secretary of State's functions 10 under sections 5 and 6. So, all of those different 11 things are caught here and not just the initial 12 designation activity. 13 Section 5(2): 14 "The Secretary of State must, in exercising those 15 functions, do so with the objective of contributing to 16 the achievement of sustainable development." 17 Then, further colour on that: 18 "For the purpose of subsection (2) the Secretary of 19 State must (in particular) have regard to the 20 desirability of (a) mitigating and adapting to climate 21 change." 22 So, those are the statutory obligations with which 23 we are concerned in relation to ground 2. 24 My Lords, I showed you in the ANPS -- and for the 25 note it is bundle 6, tab 7, page 244 -- the footnote, 58 1 125, which signposted the discharge of the 2 section 10(3)(a) obligation, but only in relation to the 3 activity of adapting to climate change. 4 So, there was nothing there about the objective of 5 achieving or contributing to sustainable development 6 and, more particularly, or in addition, nothing about 7 having regard to the desirability of mitigating, as 8 opposed to adapting to, climate change. 9 We say that is an unlawful gap in the Secretary of 10 State's discharge of the section 10(2) and 10(3)(a) 11 obligations. Simple legal misdirection by the Secretary 12 of State. 13 The reason I say it is a simple legal misdirection 14 is that if we go to bundle 1, tab 17 is the Secretary of 15 State's amended detailed grounds of resistance. 16 Paragraph 61, which you have on page 514, running to 17 515. The closing two words on 514: 18 "Rather those provisions [that is 10(2) and 10.3] 19 provide a very strong pointer that such matters should 20 not be considered. The clear intention of Parliament 21 being that the consideration should be given only to 22 existing domestic legal obligations and policy 23 commitments in relation to the mitigation of and 24 adaptation to climate change. 25 "At the least, the provisions provide no statutory 59 1 obligation to consider anything other than existing 2 domestic legal obligations and policy commitments." 3 MR JUSTICE HOLGATE: Are you relying upon that to say that 4 they misdirected themselves so as to exclude sustainable 5 development? 6 MR WOLFE: We are in a way which I will describe shortly, if 7 I may? 8 The particular focus is on the mitigation of climate 9 change, but the points -- to answer my Lord's 10 question -- of mitigation of climate change arise in the 11 context of sustainable development having a wider 12 meaning, but the focus is on the mitigation of climate 13 change. 14 MR JUSTICE HOLGATE: That is how you put it much earlier on, 15 yes. 16 MR WOLFE: Exactly right. I hope that is right. 17 So, in essence, there is a legal issue as the 18 kicking off point for ground 2, which whether -- put 19 that bundle down for the moment -- section 10(2) and 20 (3)(a) read together focus only on existing legal 21 obligations. In other words, in effect collapses into 22 the obligation under section 5(8), with the focus in 23 both of them on only existing government policy. That 24 is the Secretary of State's case. 25 We say that's wrong as a matter of law. I will come 60 1 back to that in a moment. 2 In terms of what flows from that -- and I just need 3 no remind my Lord, Mr Justice Holgate, and inform 4 my Lord, Lord Justice Hickinbottom, of the pre-trial 5 process which led -- I am only going to do it briefly -- 6 to what the Secretary of State says on discretionary 7 relief because that saves the court a lot of 8 consideration of things. 9 We were concerned that the Secretary of State would 10 say, "Even if I were I was wrong on law, it is highly 11 likely it would have made no difference". In other 12 words, a section 31-type argument. 13 In that context -- and you have the document in 14 bundle number 1, tab 18, at page 521 -- in a reply we 15 explained -- and I won't take you through the detail of 16 it -- why we wanted to admit a witness statement from 17 Professor Alice Larkin -- that is dealt with in 18 paragraphs 3 through to 7. At 8: 19 "To seek disclosure of materials relating to the 20 government's internal thinking on the emerging 21 matters ..." 22 That I described to the court a few minutes ago. In 23 other words, the emerging matters arising from, amongst 24 other things, the IPCC draft report and what flowed from 25 it in the early part of 2018. 61 1 The question set out there is: what was it that the 2 Secretary of State must have known? 3 That was with a view to rebutting a section 31 4 argument. In other words, there is nothing more to do. 5 The Secretary of State -- this is volume 13, 6 tab 42 -- an extract of the Secretary of State's 7 response. I won't take you through the detail of it. 8 Paragraph 25, on page 389, this dives into the middle of 9 the document. 10 25, they quoted application for disclosure and, at 11 29 -- 29 queries relevance of the request and then, 12 about halfway down that paragraph, just between the hole 13 punches: 14 "That point cannot require the disclosure sought. 15 The misunderstanding on the part of FoE is clearly shown 16 in paragraph 6(1) of the position statement, where it 17 argues that the disclosure is required to shed light on 18 the defendant's thinking about the implications of the 19 Paris Agreement at the material time. But the only 20 issue is: was the Secretary of State, as a matter of 21 law, entitled to consider matters against 'existing 22 legal obligations and policy commitments' on climate 23 change, as given by the Climate Change Act? If he was, 24 the claim fails. If he was not, and the matter had to 25 be considered as against the Paris Agreement [and there 62 1 are other things too, but I will stick with that for 2 now] FoE's ground will be made out." 3 That, in effect, led to a concession -- if that be 4 the right word -- that the Secretary of State would not 5 pursue a discretionary relief argument. That is 6 reflected -- page 399 in this bundle, behind tab 44 -- 7 in an email from Mr Justice Holgate's clerk to the 8 parties. In the first part of the paragraph, in the 9 middle of the page, there is a sentence about seven 10 lines from the bottom of this paragraph: 11 "Leading counsel for the defendant confirmed to the 12 court that was the only issue. Any other references in 13 the defendant's documents which might be taken to 14 suggest otherwise could be ignored." 15 He also said: 16 "If the defendant lost on this issue, defined in 17 this way, he would not raise any discretion points which 18 would justify further specific disclosure." 19 Also, the same argument applied in relation to the 20 witness statement. I won't take you through that. 21 So, the essence of this was: we were not given 22 permission to adduce the evidence and not given 23 permission to receive the documents. I have the court's 24 order -- I won't take you to that unless we need to -- 25 because the Secretary of State wasn't going to pursue 63 1 a discretion argument. That is why it crystallises as 2 a pure question of law. 3 The Secretary of State's amended detailed grounds of 4 resistance, which was part of the to and fro of that 5 email was a component is in volume 1, tab 17, page 516. 6 Paragraph 62.6 explains on the back of the legal 7 approach, that it didn't take into account the, for 8 section 10(2) and (3)(a) purposes, emerging 9 understanding arising from Paris and related matters 10 because of the legal understanding. 11 Then the discretion point is at (9), on page 517: 12 "Accordingly, the Secretary of State will not pursue 13 any discretion argument that there was (a) no emerging 14 material within government evidencing developing 15 thinking on the implication of the Paris Agreement or 16 (b) that such material would highly likely have made no 17 difference to the decision to designate the ANPS. There 18 is no need for him to do so as the argument that he was 19 obliged to consider such material in the first place is 20 hopeless and should be refused permission." 21 That is why this, at its narrowest -- the Secretary 22 of State tries to reopen that debate, we say, 23 impermissibly, but at its narrowest, this is a pure 24 question of law. 25 A pure question of law then is: what is the reach, 64 1 or rather what is not the reach of the obligation in 2 section 10? 3 All of that matters -- let me explain why that 4 matters -- because we say had they taken into account 5 that emerging material, and there are some other things 6 we say are relevant as well, then we might have had -- 7 and that is all I need to say given the discretionary 8 relief concession -- a different ANPS. We might have 9 had a different ANPS that did not leave things open in 10 relation to the Aviation Strategy, that was not solely 11 focused -- if that be the position -- on climate change 12 at targets, and also that potentially set a tougher 13 test, more of a red line -- or a red, red line of the 14 kind that the court was debating with other parties 15 earlier in the week -- rather than the test we have. 16 In other words, had the Secretary of State gone 17 beyond to any significant extent that the CCA 18 compliance, we might have had a different 5.82 or 19 related paragraphs. 20 MR JUSTICE HOLGATE: That is a different test to the words 21 "material" -- 22 MR WOLFE: Yes, so a different test of the words "material 23 impact", but also a different test in terms of its reach 24 because Paris doesn't just talk about carbon, and Paris 25 isn't just that timescale, and Paris has a higher 65 1 aspiration, as we have seen. I will develop each of 2 those themes, so scope, reach and temporal nature, if 3 you like, in a moment. 4 In one sense, because of the concession, I shouldn't 5 really need to develop any of those things. I am only 6 going to do so in a moment because the Secretary of 7 State, in effect, seeks to impermissibly go behind the 8 concession. 9 Really, those are the issues, those are the 10 practical things which flow -- 11 MR JUSTICE HOLGATE: Sorry, the concession in relation to 12 discretion? 13 MR WOLFE: In relation to discretion. Because we are not 14 facing an argument that says: even if I, the Secretary 15 of State, had looked at those other things, the higher 16 aspirations of Paris, issues beyond carbon and a longer 17 timescale, I would have highly likely produced an ANPS 18 in the same terms. That is the section 31 obligation. 19 That is what we say is the only thing it can do, that is 20 what the text I have just read you has the effect of 21 doing. 22 So, if the court -- that is why our submission -- 23 and it flows directly from that exchange which I have 24 taken you through. I hope it is reasonably clear. 25 That's why, in a sense, the dialogue at that point was 66 1 so important because we were stopped in our tracks and 2 we don't complain of this given where it ends up, but we 3 were stopped in our tracks of exploring that issue. 4 The Secretary of State quite rightly, in his 5 skeleton argument he says -- I can't remember the exact 6 wording -- I make no concession about discretionary 7 relief in relation to anything other than on this ground 8 where I have disavowed the reliance on discretionary 9 relief. 10 LORD JUSTICE HICKINBOTTOM: The submissions you are about to 11 make do go to the discretion point; is that right? 12 MR WOLFE: I am going to make a submission on the law, as in 13 the meaning of section 10(10), and then I am going to, 14 if you like, head off the Secretary of State's attempts 15 to go behind that. 16 MR JUSTICE HOLGATE: Exactly, because you talked about going 17 to three areas which you might develop. I think the 18 question going through our mind is why you need to do 19 that at this stage, particularly where you are not going 20 to show us where the Secretary of State sought to go 21 behind his discretion. I hadn't noticed that, as 22 regards discretion. 23 MR WOLFE: There is a material in there which can only go to 24 that question. 25 MR JUSTICE HOLGATE: If you could, perhaps, to save time 67 1 give us the references, we could perhaps look at that. 2 MR WOLFE: Of course, my Lords, of course. Can I pick up -- 3 I will come back to that in a moment, if I may -- the 4 legal argument then? Is that a helpful way to deal with 5 it? 6 LORD JUSTICE HICKINBOTTOM: Yes. 7 MR WOLFE: Before I go off that, can I just explain another 8 aspect of why this matters? This matters because we 9 might have ended up with a different ANPS. 10 Can I also pick up the Planning Act section 104 11 point, which the Secretary of State raises? 12 The Secretary of State says, "You can raise all 13 these things down the track". The point about raising 14 them down the track is that, at that point, they will 15 come in through the section 104(7) prism, which is 16 a balancing exercise because that's an exercise of 17 balancing impacts against advantages. 18 As opposed to what we say could have happened, might 19 have happened, should have happened, is that there was 20 a more robust and better framed 5.82 test in the first 21 place. 22 I don't propose to say anything more about the 23 section 104 point, but that is the ... 24 Back then, if I may, to section 10 of the 25 Planning Act, volume 1, at tab 8. 68 1 MR JUSTICE HOLGATE: It is not just section 104(7), but it 2 is also the requirement to determine the DCO in 3 accordance with the NPS. It is a balancing exercise in 4 that context, and that is just a section 38(6). 5 MR WOLFE: Yes. If we were forced to debate those issues 6 down the track with a DCO with paragraph 5.82 in it, the 7 discussion would be very different at a DCO from the 8 debate we say would take place with a 5.82 framed by 9 reference to the wider considerations. That is why it 10 is important to get the test right now, at the ANPS 11 stage, and to get the test formulated on the basis of 12 a proper application of section 10. 13 Section 10, as I said, it applies in relation to all 14 the functions in 5 and 6. It requires, in the exercise 15 of those functions, that he does so with the objective 16 of contributing to the achievement of sustainable 17 development, for which purpose he must in particular 18 have regard to the desirability of mitigating climate 19 change. 20 We say, there are two mandatory obligations there; 21 the one focused on sustainable development and the 22 sub-obligation focused on, in particular, having regard 23 to the desirability of mitigating climate change. That 24 is a mandatory duty focused on a specific consideration. 25 So, sustainable development and then, within that, 69 1 mitigating climate change. 2 For the purpose of understanding sustainable 3 development, we would draw the court's attention to what 4 the NPPF says about that. We have the relevant extract 5 in bundle 13, tab 32, on page 305. Paragraph 7: 6 "At a very high level the objections of sustainable 7 development can be summarised as meeting the needs of 8 the present without compromising the ability of future 9 generations to meet their own needs." 10 We say that brings in a temporal reach, which is not 11 limited to 2050, which is the Climate Change Act 12 positions. In practical terms, that matters here 13 because this development has a 60-year lifetime going to 14 2085. It is also matters here because, as you have 15 seen, the Paris Agreement requires, or points towards 16 zero emissions by the second half of the century. So, 17 there is a wider temporal reach there. That is the 18 temporal reach point arising from sustainable 19 development. 20 In terms of the desirability of mitigating climate 21 change, we say that simply required an assessment of the 22 desirability. It is a bit like the desirability 23 assessment in relation to listed buildings or other 24 things. 25 There is nothing in the Act to say that assessment 70 1 is limited to the considerations arising from the 2 Climate Change Act. Section 10 means what it says. 3 There is no basis, we say, to collapse that into 4 a focus on only what is in government policy, which in 5 effect collapses into the Climate Change Act 6 considerations. 7 What is notable, if it is relevant and the Secretary 8 of State makes this point, is that the Climate Change 9 Act and the Planning Act came into force at the same 10 time. What we have here is Parliament choosing both 11 within the planning Act and between the Planning Act and 12 the Climate Change Act to refer to different things. In 13 one situation, section 5(8) government policy on climate 14 change. In section 10, the desirability of mitigating 15 climate change, not limited to government policy. 16 That is not -- contrary to what the Secretary of 17 State seems to think -- us attempting to argue that 18 Paris is somehow incorporated by the backdoor. All we 19 say -- and I don't want to trespass into the discretion 20 point unnecessarily -- to deal with that legal point is 21 that considerations arising from Paris go to the 22 desirability of mitigating climate change. 23 The simple point is that Paris and what's followed 24 it have increased the desirability of mitigating climate 25 change. 71 1 A simple point: Parliament has used different words 2 in the same Act to mean different things, and we say 3 designedly so, and the court can't collapse them. We 4 have given you references to Bennion and other sources 5 to deal with those fairly -- 6 MR JUSTICE HOLGATE: Different language in the same Act, did 7 you say? 8 MR WOLFE: Different language in the same Act, and if you 9 put the two Acts together -- 10 MR JUSTICE HOLGATE: In the same Act you are contrasting 11 which provision? 12 MR WOLFE: 5(8) and 10(3). 13 MR JUSTICE HOLGATE: It is back to that point. 14 MR WOLFE: Yes. We say as a matter of law, as a matter of 15 construction, you can't collapse to the two. You can't 16 say that having regard to the desirability of mitigating 17 climate change the desirability is only the aspiration 18 given by the Climate Change Act. 19 Even without using different language, it is clear 20 that must add a different component. We say, a wider 21 component, because otherwise what would section 10(3) 22 add? Because section 5(8) requires the Secretary of 23 State to explain how the ANPS has taken account of 24 government policy. That necessarily implies, if it 25 wasn't in any event obvious, that he has to take account 72 1 of government policy. Section 10(3)(a) is altogether 2 different. It is not merely having regard to or, in 3 particular, having regard to the government policy or 4 the desirability of mitigating climate change arising 5 from government policy. 6 My Lords, what the Secretary of State adds is he 7 attempts to add two things, which we say get him 8 nowhere, particularly in the light of the concession. 9 It is a point you asked me to illuminate. In his 10 amended detailed grounds of resistance -- you have those 11 at bundle 1, tab 17, page 513, paragraphs 60 to 60E. He 12 says that this was in truth a discretionary exercise and 13 we can only complain about it, as it were, on the basis 14 of the cases flowing from Findlay and so on. That is 15 his first point. 16 We say that gets him nowhere because he didn't think 17 he had a discretion here. He didn't have in mind: I can 18 go beyond. 19 He had in mind that section 10 equals section 5(8) 20 in terms of its focus. So, he can't claim to have 21 exercised a discretion he didn't think he had. 22 Secondly, that would go nowhere in the face of the 23 concession because all that is saying is: I was 24 exercising a discretion in evaluation. 25 That can't get him home because of the concession. 73 1 MR JUSTICE HOLGATE: I don't follow that. 2 MR WOLFE: My Lord, he is claiming that somehow, having told 3 us that as a matter of law he didn't think he had 4 a discretion because section 10(3) collapses into 5 section 5(8), he then says, "I thought I had 6 a discretion and I exercised it in a lawful way". We 7 say that fails as a matter of law, but even if it didn't 8 fail as a matter of law, his newly claimed -- and it is 9 newly claimed because it appeared in the amended 10 detailed grounds for the first time. It didn't even 11 appear in the detailed grounds, let alone the summary 12 grounds. It was only in the amended detailed grounds -- 13 is at best a further attempt to go behind the 14 concession. It is to say, "I had a discretion and 15 I exercised it lawfully". 16 If necessary -- and this would be, if you like, the 17 nth fall back, and this is what I'm not going to trouble 18 you with -- we would say that three things, and these 19 are the three things we have highlighted in our 20 materials, are obviously material in any event, applying 21 the Findlay test. We say you don't get there. We don't 22 get there because there isn't the exercise the Secretary 23 of State contemplates. We have these in our materials. 24 First of all, we would contextualise these by 25 reference to the UN framework convention on climate 74 1 change. You have that in tab 24 of volume 1 of the 2 legal materials bundle. Article 3.3. It sits above or 3 behind Paris. 3.3, principles: 4 "Parties shall be guided inter alia by ..." 5 And then 3.3: 6 "The parties shall take precautionary measures." 7 So, there is a precautionary approach underpinning 8 all of this. 9 Then the things we point to, and we have set out in 10 circumstances -- now I won't go through them in any 11 detail at all -- the Paris considerations, post-Paris 12 considerations. We say even if this were 13 a discretionary exercise they would be obviously 14 material. The higher aspiration and a longer time 15 frame, and the wider considerations. 16 What we have called non-CO2 emissions. In other 17 words, these are the emissions or the impacts of 18 aviation on climate change, which are not CO2 related, 19 so they are not captured in the carbon targets and 20 so on. 21 You have information about them. I will just give 22 you the reference to it for now. In volume 13, tab 11, 23 starting at page 119, you have the climate change 24 committee's 2009 report. I just refer you, for now, to 25 page 119, 121 and chapter 6 in 135, which explains their 75 1 observations about that. In the statement of common 2 ground -- volume 6, tab 4, page 73, at paragraphs 26 to 3 28 and 31 -- you have materials agreed on the non-CO2 4 emissions. No doubt at all as between the parties, they 5 are significant impacts, in climate change terms, of 6 aviation. Potentially up to a factor of twice as bad as 7 the CO2. The Secretary of State's response is to say 8 they are very uncertain. There is debate about the 9 extent of their impact. 10 We say that is not a basis to exclude them. I will 11 come to the SEA aspect of that in due course. They are 12 obviously material. Once you go beyond, as you need to 13 for section 10(3) purposes, for the climate change Act. 14 The third thing -- and I have hinted at this 15 already -- is timescales. You have seen already that 16 Paris Agreement has a commitment in the second half of 17 the century. Can I also give you the reference to 18 the -- it is in the statement of common ground, bundle 19 6, tab 4, page 71, paragraph 20 -- climate change 20 committee in January 2018, explaining that extended 21 temporal element would mean the UK required greater 22 ambition. So, this is going beyond the 50-year 23 timescale. 24 You have, if you need it, in bundle 9, tab 2, 25 page 148, the assessment of sustainability in which 76 1 paragraph 7.4.102 gives you the 60-year appraisal period 2 for the project, 60 years going beyond 2025. 3 Then can I just show you Caroline Low? So, that is 4 volume 4, tab 1, page 286. So, the complaints, she 5 summarises this way, left-hand column, 55D, at the foot 6 of that page 286 table: 7 "The complaint is the fact that the third runway at 8 Heathrow will, in the current circumstances, outlive the 9 2050 target and current climate policy." 10 She says: 11 "When assessing the impact of the expansion against 12 climate change targets it is sensible to do so against 13 the target currently in place for the CCC's planning 14 assumption in 2050." 15 So, "sensible". 16 But we say, properly understood sustainable 17 development reaches beyond that and a longer assessment 18 is required. 19 My Lord, those are the, as it were, elements that we 20 say -- if necessary, we would say were obviously 21 material, but we say we don't get to that. 22 My Lord, that is ground 2. 23 Ground 3 is SEA. If the court agrees with 24 Mr Pleming on his submissions as to the legal approach, 25 then plainly it will apply those across the board. But 77 1 we say we don't need that, and indeed our case was 2 framed on the basis of what you might call a more 3 conventional approach. 4 Can I just ask you briefly to look at the 5 SEA Directive, a couple of provisions that we need to 6 see for our purposes. The SEA Directive is in legal 7 materials, tab 19. The recitals, if you would, please, 8 recital 1. Mr Pleming showed you other recitals. 9 Recital 1 says this: 10 "Article 174 of the treaty provides that community 11 policy on the environment is to contribute to, inter 12 alia, the preservation, protection and improvement of 13 the quality of the environment, the protection of human 14 health, prudent and natural utilisation of natural 15 resources and that it is to be based upon the 16 precautionary principle." 17 So, again, in this context, as it were, emphasising 18 what we inherit from the UN framework convention, that 19 we are having a precautionary approach. 20 In terms of the elements on which we alight, you 21 have annex 1. In annex 1, this is the list of 22 information to be included in the environmental report 23 by reference to Article 5(1). (e), subparagraph (e): 24 "The environmental protection objectives established 25 at international community or member state level, which 78 1 are relevant to the plan or programme, and the way those 2 objectives and any environmental considerations have 3 been taken into account during its preparation." 4 We say that needed to include Paris, as the 5 international obligation, and how its considerations 6 have been taken into account as part of the SEA process. 7 So, this very much runs alongside, has the same 8 effective result, as the arguments on ground 2 in terms 9 of the reach of things that would be included arising 10 from Paris and so on. 11 MR JUSTICE HOLGATE: Could I just ask a question on this 12 legislation? 13 Annex 1 is referred to in Article 5 in two places. 14 One is in the last sentence of 5(1) and then 5(2) says: 15 "The environmental report prepared pursuant to 16 paragraph 1 shall include the information that may 17 reasonably be required." 18 MR WOLFE: Taking into account current knowledge and method 19 of assessment. So, that is, as it were, the evaluative 20 uncertainty point. It is: if you can't assess it, you 21 may say we can't include it. 22 If I understand my Lord's point. 23 MR JUSTICE HOLGATE: There is a judgment which is permitted, 24 recognised by the words "that may reasonably be 25 required"; is that correct? 79 1 MR WOLFE: Absolutely. 2 MR JUSTICE HOLGATE: I looked at the way this was transposed 3 into the UK regulations. I think it is regulation 12, 4 which we have at tab 14, and the words are re-arranged 5 as sometimes happens. I think it is regulation 12. 6 Yes, subparagraph 3: 7 "The report shall include such of the information 8 [and here it is schedule 2] as may reasonably be 9 required." 10 MR WOLFE: Absolutely. 11 MR JUSTICE HOLGATE: Is that a sufficient transposition? 12 MR WOLFE: It is a rearrangement of the words, I think 13 My Lord is right. Absolutely. 14 MR JUSTICE HOLGATE: Thank you. 15 MR WOLFE: Can I just pick up annex 2 and I'll come back to 16 the implications of my Lord's point shortly. 17 Annex 2, the criteria for determining the likely 18 significance, which is, as it were, the entry point into 19 that. (2) in the annex: 20 "Characteristics of the effects and of the area 21 likely to be affected having regard in particular to 22 probability, duration, frequency and reversibility of 23 the effect, cumulative nature of the effect, 24 transboundary nature of the effects, the risks to the 25 human health or the environment, eg due to accidents, 80 1 the magnitude and spatial extent of the effects, 2 geographical area and size of population likely to be 3 affected." 4 It is hard to imagine anything which hits those 5 buttons more strongly -- if that is a right 6 expression -- than climate change. 7 Therefore an international agreement that bears on 8 that and sets a higher aspiration in relation to it. 9 In terms of the cases, Mr Pleming took the court 10 yesterday to Forest Heath and Heard, and if I have read 11 the transcript rightly, my Lord, Mr Justice Holgate, 12 characterised those cases as cases "about a hole in the 13 report". 14 MR JUSTICE HOLGATE: Particularly in the context, having 15 read them again more carefully since then, in the 16 context of a requirement to assess alternatives. 17 MR WOLFE: Absolutely. 18 MR JUSTICE HOLGATE: They are actually contained in 19 Article 5. 20 MR WOLFE: Yes. 21 MR JUSTICE HOLGATE: Not necessarily any hole in court. 22 MR WOLFE: No. Can I take you to Shadwell Estates then 23 which is in tab 97 of the legal materials bundles. This 24 is the case, I think, on which the Secretary of State 25 and we both alighted. We say this is a hole in the 81 1 report case. Shadwell Estates is tab 97. Within 2 that -- 3 MR JUSTICE HOLGATE: Please don't take the words I used out 4 of context. 5 MR WOLFE: I am adopting them as my own. You can tell me 6 I am using them wrongly if that's preferable. 7 Paragraph 78, this is Mr Justice Beatson, as was, 8 picking up, 78, Seaport Investments, said this, the 9 second line of the quote: 10 "The responsible authority must be accorded 11 a substantial discretionary area of judgment in relation 12 to the compliance with the required information of 13 environmental reports." 14 I suspect that is partly picking my Lord's point 15 about reasonably required. 16 He also stated: 17 "The court will not examine the fine detail of the 18 contents of such a report but will seek to establish 19 whether there has been substantial compliance with the 20 information required." 21 He went on to consider "whether the specified 22 matters have been addressed rather than considering the 23 quality of the address." 24 "Whether the specified matters have been addressed." 25 That is the first point I make. We say 82 1 international agreements as raised in Paris has not been 2 addressed. We are not complaining about the quality of 3 the addressing, if I can twist those words. It is 4 a gap, it is a hole, it has not been addressed. 5 But even, if I go back in that paragraph to pick up 6 the substantially discretionary area of judgment point, 7 can I just explore that, if I may, by reference to the 8 Secretary of State's case and the materials because one 9 can envisage, and I am sure we have all seen situations 10 in which there is an explanation for why some particular 11 consideration was not included, as it were, pursuant to 12 that discretionary evaluation. We didn't include an 13 assessment of plovers, that was Milne I think it was, 14 because we didn't think there was a serious problem. We 15 didn't include Blewett itself, we didn't include an 16 assessment of something else because that could be dealt 17 with later. There was an explanation, at the time 18 a contemporaneous explanation which the court was 19 prepared to accept. 20 My Lord, can I just explore briefly what the 21 Secretary of State has said about the evaluation or the 22 decision here, his explanation for why those matters 23 have not been included. 24 Can I go to bundle 1, the Secretary of State's 25 detailed grounds of resistance, tab 17, page 520.1. The 83 1 section starts on 520 but the first few paragraphs are 2 legal points, including at paragraph 72, reference to 3 Shadwell Estates where I have just taken you. 4 Then the substance points are at 75 and 76. I just 5 want to explore them briefly. 75 is a reference to the 6 consultation response and it is a quote from two 7 paragraphs from the consultation response. But that is 8 not in any way addressed to the consideration about the 9 scope of the AOS. It is not focused on a "why didn't we 10 include Paris in the AOS?" 11 Over the page at paragraph 76, fourth, a reference 12 to Kyoto Protocol and so on. The last few lines: 13 "The CCC set up under the CCA 2008 has advised the 14 government at this stage not to amend the 2050 target in 15 CCA 2008 in light of the Paris Agreement. The CCA is 16 considered in the AOS." 17 That doesn't claim to be, and I will show you in 18 a moment why it can't be or wasn't, the thinking at the 19 time. Nor does it actually directly bear on the 20 question. It is not addressed to, why didn't we include 21 this in the AOS? 22 Fortunately for us, the Secretary of State does do 23 that in his skeleton, picks it up for the first time in 24 his skeleton argument, which you have in volume 10, 25 tab 5, and I'd like you to look, please, at page 164 to 84 1 165. 2 Paragraph 129 says this in sub(1): 3 "The AOS gave detailed consideration to carbon 4 impacts." 5 So be it but that is not the same as picking up 6 Paris and its implications for the reasons I hope I have 7 developed during the course of the morning. 8 Then it is (2): 9 "The obligation is to have regard to relevant 10 international protection objectives. Ms Stevenson's 11 first witness statement explains why the AOS did not 12 regard the Paris Agreement as relevant. Footnote 101." 13 Sub(3): 14 "The AOS was scoped, including on carbon and climate 15 change issues, with the relevant statutory environmental 16 bodies. Footnote 102." 17 I just want to explore footnotes 101 and 102. 18 Footnote 101 is a reference to our claim but also to 19 paragraphs in Ms Stevenson's witness statement which 20 I will take you to in a moment, 3.125 to 3.128. It 21 doesn't say that but that is actually to her witness 22 statement. And 102 is Ms Stevenson's witness statement 23 at 2.29 -- I will take you there in a moment -- and the 24 AOS scoping report and the AOS scoping responses from 25 statutory environmental statutory bodies. So those are 85 1 the places we are looking to find this explanation. 2 My Lords, just to pick up the AOS scoping report 3 materials there for the moment, you have the AOS scoping 4 report in core bundle 11, tab 17, starting at page 371. 5 I am not going to take you to it because it doesn't say 6 anything about Paris or why it wasn't included. If 7 Mr Maurici says we have missed something he will no 8 doubt tell us in due course. It contains no explanation 9 of that gap. 10 The other thing is the AOS consultation responses 11 report, bearing in mind this was a consultation of 12 statutory consultees only not a public consultation. 13 You have an extract from that in bundle 12, tab 23, 14 starting at page 621. But not in that extract nor in 15 the rest of the report. 16 MR JUSTICE HOLGATE: Sorry, can you just give us the 17 reference again? You said the consultation report. Is 18 this the AOS scoping responses? 19 MR WOLFE: Exactly right. It is the second thing mentioned 20 in 102. You have an extract of that document in 21 bundle 12, tab 23, page 621. Neither in that extract 22 nor in the rest of the document as far as we can see, 23 but we will be told if we are wrong, is any mention of 24 Paris or any evaluation as to why it shouldn't be 25 included, it and its consequences which is what the 86 1 statute requires. 2 So we then go to Ms Stevenson and you will keep in 3 mind paragraph numbers to which we are asked to refer. 4 Her witness statement is at bundle 4, tab 3. The 5 Secretary of State's skeleton draws your attention, not 6 quite in this order, but starting page 372, 7 paragraph 2.28, she describes, as the Secretary of 8 State's skeleton correctly mentions, the scoping 9 process. She describes in 2.28 the way in which a draft 10 scoping report was issued to the statutory consultation 11 bodies on 9 March in a process which ran to April 2016. 12 She then at 2.29 says: 13 "The consultation with consultation bodies 14 identified the information upon which the AOS would 15 require." 16 And then she gives a bit more flesh on that detail. 17 Then she talks about a number of other topics. We 18 pick it up, please, at page 419. These, you will recall 19 from the footnote, paragraphs 3.125 to 3.128 were the 20 paragraphs to which the footnote drew our attention. 21 In 3.125 and 3.126 she refers to appendix A of the 22 scoping report. She mentions in there the Climate 23 Change Act and the Kyoto Protocol. That is 3.125 and 24 3.126. Can I ask you just to keep that bundle on the 25 table if you would for a moment and go to bundle 8. In 87 1 tab 1 of bundle 8 you have the appendix to the scoping 2 report. Starting at page 2, running to page 8 you have 3 a list of a range of documents and materials, they are 4 not all international. She mentions, she referred you 5 to, and I draw your attention to, halfway down page 3, 6 index to page 45, the Kyoto Protocol. And then a bit 7 further down index to page 49, the UN Framework 8 Convention which you have seen. Then over the page on 9 page 4, index to page 76, the Climate Change Act. 10 Can I just pick up page 46 of your bundle which is 11 page 45 in terms of her pagination. That is the 12 reference to Kyoto Protocol which set targets which ran 13 their course by 2012. So what was included, in a sense 14 rightly, giving a wide reach was the Kyoto Protocol. 15 MR JUSTICE HOLGATE: Wasn't the submission you made five 16 minutes or so ago that we can search through the whole 17 of this document and we won't find any reference to the 18 Paris Agreement? 19 MR WOLFE: Indeed that is right although I was actually 20 referring to two other documents. This is an appendix 21 to the scoping report. 22 MR JUSTICE HOLGATE: I see. I took that to be embraced by 23 the scoping report. But this is looking -- 24 MR WOLFE: This is the appendix which lists what was 25 included so it shows you a range of the reach of what 88 1 they included. 2 MR JUSTICE HOLGATE: But the short point is, you won't find 3 the Paris Agreement in this. 4 MR WOLFE: You won't find the Paris Agreement in there but 5 you do find things which have, as it were, run their 6 course and are no longer current. 7 We then go back, if you would, to Ms Stevenson's 8 witness statement. This is all hung, and rightly so in 9 one sense, on the scoping process. We then see at 10 3.127: 11 "Under the Paris Agreement of December 2015, the 12 signatories agreed to seek limit ..." 13 So mention in her witness statement of the Paris 14 Agreement. 15 Then in 3.128: 16 "As noted in Caroline Low's witness statement, 17 in October 2016 the CCC said that the Paris Agreement 18 target is more ambitious ...but the UK should not set 19 new UK emissions targets now." 20 Miss out a few words. 21 "The AOS has followed this advice and considered 22 existing domestic legal obligations as the correct 23 basis." 24 It is not clear to us what status is claimed for 25 that paragraph. It is in the list of paragraphs which 89 1 the Secretary of State relies on to explain the 2 evaluation, but it can't explain the evaluation that 3 took place in the scoping exercise because the 4 evaluation in the scoping exercise was conducted 5 in March and April of that year, 2016, and the CCC's 6 advice only came later. 7 Not only do you not see any mention of this 8 explanation in the scoping exercise, it is actually 9 inconsistent with the scoping exercise on a simple 10 timing basis. 11 So go back to how I got into all of this. This is 12 exploring whether if and insofar as there is an 13 evaluation to be done here about whether or not to 14 include Paris, is there here for the court's purposes an 15 evaluation which stands any scrutiny whatsoever? There 16 is an evaluation, but it is not an evaluation which 17 explains why they didn't include Paris because it took 18 place -- the point it picks up on. It doesn't mention 19 Paris at all and the point it picks up on post-dates the 20 scoping exercise. 21 MR JUSTICE HOLGATE: In any event, one of the points you 22 made earlier on is that this is only part of what the 23 CCC said, the now point, as opposed to likelihood of 24 need to amend. 25 MR WOLFE: Absolutely. 90 1 MR JUSTICE HOLGATE: That is a bigger point. 2 MR WOLFE: Absolutely. If I was seeking to say that the 3 judgment, if it was indeed made in this way, were an 4 unsustainable one, I might say this really understated 5 the CCC's advice. I am not going that far. I don't 6 need to go that far. All I need to say for the purposes 7 of our submission is this can't be the explanation. It 8 is included as a paragraph here. 9 MR JUSTICE HOLGATE: That is a temporal point but in terms 10 of substance, the only reference, if I have followed you 11 correctly, to the CCC is the "don't need to do it now" 12 point. 13 MR WOLFE: Yes, which doesn't get you very far, as we have 14 seen in the CCC don't go back to the beginning of the 15 morning. 16 If this is an evaluative exercise as opposed to 17 a whole case we say for all those reasons the evaluation 18 doesn't stand up. 19 My Lords, can I just finally pick up over the page 20 in Ms Stevenson -- 21 MR JUSTICE HOLGATE: Forgive me, I just want to make sure 22 I see where this is all going in the bigger picture. 23 This is in the context of looking at sustainability. 24 MR WOLFE: This is in the context -- yes, but it is more 25 narrowly legally in the context of the SEA. 91 1 MR JUSTICE HOLGATE: Yes, the longer term time horizons. 2 MR WOLFE: Longer term, wider reach, greater ambition, wider 3 range of not just carbon, all of those things. 4 MR JUSTICE HOLGATE: Okay. 5 MR WOLFE: So the simple point which underpins ground 2 and 6 ground 3 is whether through the prism of section 10 or 7 through the SEA framework -- they go to the same 8 place -- they needed to go beyond the domestic 9 obligations with all their limitations. I won't repeat 10 all that. Had they done so, we might have got (see 11 discretionary relief abandonment) a different ANPS 12 including with a different test which set a wider in all 13 those senses and redder test, if you like. That is 14 where this all goes. That is why it is an ANPS point. 15 I was just going to finally pick up on page 420 over 16 the page in Ms Stephenson's witness statement about the 17 non-CO2 bit. This is all still in her conversation 18 about scoping and oddly comes under the heading "Carbon" 19 but that doesn't matter. 20 3.132, in relation to the FoE claim regarding 21 non-CO2 emissions. Four lines from the bottom of the 22 page: 23 "As to the non-CO2 impacts of aviation the AOS found 24 that although these could significantly contribute to 25 global warming, there was a high degree of uncertainty 92 1 in their prediction and it was therefore not possible to 2 apply a multiple for the assessment of quantifiable 3 admissions. For this reason the AOS was unable to 4 include them in its assessment." 5 We say that is not a good answer. Uncertainty 6 arises in lots of case. 7 The carbon assessment also notes: 8 "This position is kept under review by DfT but is 9 worth noting that the non-CO2 emissions of this type are 10 not currently included in any domestic or international 11 legislation or emissions targets and so their inclusion 12 in the assessment would not affect its conclusions 13 regarding legal compliance." 14 That is to focus only, as you will by now well 15 understand on the CCA targets. In other words Don't 16 include non-CO2 which might impact on Paris because 17 non-CO2 is not part of CCA. That is not a good reason 18 to not include Paris in your SEA. Indeed, it is a good 19 reason to include Paris in your SEA. 20 Can I just turn my back for a moment, my Lord? 21 LORD JUSTICE HICKINBOTTOM: Yes. 22 MR WOLFE: My Lord, for the purposes of the transcript 23 I misspoke. That is a delicate word, isn't it? 24 Apparently, I talked about the obligations in Paris as 25 opposed to the objectives in Paris. 93 1 I think I've touched on, as it were, the last point 2 which is discretionary relief as much as I need to. You 3 have our note on discretionary relief which I hope sets 4 things out, and I adopt what Mr Pleming said on 5 showstoppers, if that's necessary to do so. 6 LORD JUSTICE HICKINBOTTOM: Yes. 7 MR WOLFE: Unless I can assist further, those are our 8 submissions. 9 LORD JUSTICE HICKINBOTTOM: I think you thought I was going 10 to grab the speaking note that was offered. 11 MR WOLFE: I had no idea what you were going to do. 12 LORD JUSTICE HICKINBOTTOM: But I thought, certainly for 13 these purposes today, the transcriber would make better 14 use of it. But I think it would be helpful if we were 15 to have that speaking note mainly for the references. 16 MR WOLFE: Of course. I might edit it slightly before 17 I give it to you if that's okay but it will have the 18 references in. 19 MR JUSTICE HOLGATE: It would need to go to your opponent. 20 MR WOLFE: Of course. I might take out some of my side 21 comments if that's okay. 22 MR JUSTICE HOLGATE: You wouldn't be adding to it in other 23 words. 24 MR WOLFE: No, it would only be removing -- not that I'm 25 saying there's anything embarrassing in it but you might 94 1 not want to read my, you know, and you won't read my ... 2 LORD JUSTICE HICKINBOTTOM: If that could be circulated as 3 well as given to us at some stage that would be helpful 4 I think. 5 MR WOLFE: Of course. 6 MR JUSTICE HOLGATE: Might it also help just to see where 7 you say the Secretary of State has been going back on 8 the concession in relation to discretion. I am sorry if 9 I have not followed that. 10 MR WOLFE: It is the same point -- the point made, and 11 I will get the reference in a moment if I need to, is 12 that the Climate Change Committee, it is said, said that 13 the Climate Change Act targets could be, might be, 14 compatible with Paris. In other words, it is raising 15 the potential, and we don't accept that and all the rest 16 of it, but assume for the moment that's all entirely 17 correct, that is only relevant to the ground 2 argument 18 if it is, in effect, saying, even if I have gone beyond 19 I wouldn't have changed my mind. 20 MR JUSTICE HOLGATE: Yes. 21 MR WOLFE: So that is back into discretion. Is that 22 sufficiently explained? 23 MR JUSTICE HOLGATE: Yes. 24 LORD JUSTICE HICKINBOTTOM: Is that it, Mr Wolfe? 25 MR WOLFE: That's it. 95 1 LORD JUSTICE HICKINBOTTOM: Thank you very much. 2 Yes, Mr Crosland. 3 MR CROSLAND: We didn't have a spare hard copy of the 4 speaking note although I have sent one to Mr Willis so 5 perhaps that can be with the transcriber after lunch. 6 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 7 Submissions by MR CROSLAND 8 MR CROSLAND: Just by way of introduction to our submissions 9 can I take my Lords to bundle 13, tab 22, page 202. 10 This is again the government's Clean Growth Strategy. 11 My Lords, it is perhaps not a coincidence that both 12 Mr Wolfe and I have started our submissions with this 13 document because this is undeniably an expression of 14 government policy on climate change. It is published 15 pursuant to sections 12 and 14 of the Climate Change 16 Act. 17 There at the top of page 202: 18 "The UK played a central role in securing the 2015 19 Paris Agreement." 20 Then just a little later down: 21 "The actions and investments that will be needed to 22 meet the Paris commitments will ensure the shift to 23 clean growth will be at the forefront of policy and 24 economic decisions made by governments and businesses in 25 the coming decades." 96 1 My Lords, we say this is precisely the sort of 2 decision that the government has in mind. 3 My Lord, we support Mr Wolfe's submissions that the 4 Secretary of State should have taken account of the 5 Paris Agreement by virtue of section 10 of the Act but 6 the emphasis of our legal arguments is different. 7 Primarily we get there by a different route. Primarily 8 we focus on section 5(8) of the 2008 Act, government 9 policy relating to climate change. 10 Just in terms of setting out the positions of the 11 different parties, may I take the court to bundle 10, 12 tab 1, 36. This is the skeleton argument of the 13 Boroughs, paragraph 96.1. My Lords, there you will see 14 that Greenpeace, the Boroughs, the Mayor of London, the 15 claimants endorse and support the legal submission that 16 section 5(8) obligates the Secretary of State to provide 17 an explanation as to how account has been taken of the 18 government's obligations under the Paris Agreement which 19 they say is a key aspect of the UK's policy relating to 20 climate. 21 My Lords, at the heart of our case, and there are 22 a number of grounds, lie two simple propositions. The 23 first is that the Paris temperature limit of 1.5 degrees 24 Celsius and well below 2 degrees Celsius is not just 25 a key aspect of government policy on climate change, it 97 1 is in fact the linchpin of government and international 2 policy on climate change and has been so 3 since December 2015 which was six months after the final 4 report of the Airports Commission. And therefore the 5 Secretary of State was bound to take it into account, 6 both by virtue of the express terms of the Act but also 7 in consideration of basic public law principles of 8 rationality. 9 There is a sort of corollary of that argument that 10 is maybe less visible but it's at the heart of our 11 rationality claim, and that's that the 2 degrees C 12 target which was adopted by the Secretary of State in 13 his analysis and which had been rejected as inadequate 14 by 195 governments in 2015, that was an irrelevant 15 consideration which the Secretary of State ought not to 16 have taken into account. 17 In relation to the first of those propositions, the 18 Secretary of State presents us with a defence. Some 19 difficulty in that it is a new defence, it appeared only 20 in January and pleadings had to be amended, but there is 21 a defence to that point which we will need to address. 22 But in relation to that second proposition, the 23 Secretary of State offers no defence at all. Nowhere in 24 his skeleton argument, nowhere in his defence does he 25 explain why he took 2 degrees as the benchmark or how in 98 1 2018 that could still be a relevant consideration. 2 The closest Mr Maurici comes to addressing the point 3 is section 172 of his skeleton argument where he says: 4 "The approach said to be taken in assessing the 5 carbon traded scenario is inaccurate." 6 And that is where his witnesses have said they have 7 used the 2 degree C target. 8 But he doesn't explain why it is inaccurate, and the 9 obvious difficulty in his position is the only way we 10 know about that is from his own witnesses. Nowhere else 11 was it said in any part of the consultation process that 12 the 2 degree C target was being adopted as the 13 benchmark. 14 My Lords, it really is either or. It is either the 15 Paris limit or it is the 2 degree limit. There is not 16 available a third proposition which is somehow that 17 government policy doesn't refer to any limit. That 18 would be completely incoherent. If I may just explain 19 why that is. 20 MR JUSTICE HOLGATE: The submission based on the capped 21 scenario, you just mentioned a moment ago, that is what 22 it is sometimes referred to, isn't it? 23 MR CROSLAND: The capped scenario is the planning assumption 24 scenario. 25 MR JUSTICE HOLGATE: Exactly, that's what I wanted to ask 99 1 about as opposed to the traded scenario. That is 2 a reference to the planning assumption of CCC. 3 MR CROSLAND: Yes, correct, and it is in the carbon traded 4 scenario that the Secretary of State's witnesses say 5 they have used the 2 degrees C scenario. 6 MR JUSTICE HOLGATE: In that scenario. I misheard you, 7 sorry. I thought you were saying it was the other way 8 round. 9 MR CROSLAND: Section 5(8) refers to the two pillars of 10 government policy on climate change. The first is 11 mitigation; the second is adaptation. And both of those 12 are premised fundamentally on the global temperature 13 limit. 14 Just to make this maybe a little bit easier to 15 grasp, if I may turn to bundle 13/20/185. We don't need 16 to worry about the detail, the technical detail of this 17 graphic but it just explains conceptually how domestic 18 carbon targets are derived from that global temperature 19 limit. 20 So you have an agreement that says the world must 21 limit warming to X, say, 1.5 degrees. The IPCC then 22 produce carbon budgets, global carbon budgets. 23 Basically that means this is the amount of total carbon 24 the world can put into the atmosphere, consistent with 25 maintaining those limits. For a 66 per cent probability 100 1 of limiting warming to 2 degrees the IPCC may say you 2 have 1,000 gigatonnes of carbon left. For a 50 per cent 3 of chance of 1.5 degrees C, maybe you have 500 4 gigatonnes of carbon between you. Your job, as 5 countries, is to work out the allocation. 6 What we see on this graphic, the left-hand side of 7 the graphic is the rise of cumulative carbon emissions 8 from the start of the industrial revolution from 1750. 9 The different colours is because each different bit is 10 there to reflect the emissions of a different country. 11 It doesn't really matter for these purposes. They are 12 stacked on top of each other. And you see this 13 relentless rise in proportion to economic growth, 14 population growth. 15 Those boxes on the left-hand side, those are the 16 carbon budgets produced by the IPCC for limiting warming 17 to 2 degrees to 1.5 degrees. They give us our traffic 18 light lines on the right-hand side: green, amber, red. 19 That is what the world has to do collectively to comply 20 with the ambition that they have all agreed to. 21 The precise -- what matters is the area under the 22 necklaces on the right-hand side, which reflect the 23 total weight of carbon. You can see you could stretch 24 those lines in slightly different ways, you'd still have 25 the same weight underneath. 101 1 When a particular country comes to working out its 2 domestic targets what it has to do is plan an emission 3 trajectory, a carbon reduction trajectory which is 4 consistent with those global trajectories. If you 5 didn't have those global trajectories, you would simply 6 be picking a number out of a hat. It would be 7 completely meaningless. So it was precisely this model 8 that was used by the UK Government in 2008. Take the 9 global carbon budget, work out the UK's fair share. 10 This was the that was model adopted. 11 LORD JUSTICE HICKINBOTTOM: When you say the national 12 trajectory has to be consistent with the global 13 trajectory that is not absolutely true, is it, because 14 as you say, each country has to bear their "fair share". 15 There is an assessment. Particularly there is an 16 assessment by a country such as the UK in 2008 which in 17 some ways was ahead of the game in fixing anything, in 18 fixing any target. 19 MR CROSLAND: Yes, but it must be consistent in the sense 20 that if you see that the global trajectory, for example, 21 must come to, let's say, zero by 2050, then all the 22 countries individually must be doing roughly the same. 23 MR JUSTICE HOLGATE: If they reduce their present 24 contribution burden in terms of carbon pro rata, their 25 curve would follow the shape of this curve. 102 1 MR CROSLAND: Exactly so. 2 MR JUSTICE HOLGATE: That doesn't -- 3 LORD JUSTICE HICKINBOTTOM: Sorry, but it is a sophisticated 4 assessment because I assume that over time countries are 5 not going to reduce carbon emissions at the same rate. 6 We can't just say, well, we produced 2 per cent of the 7 world's carbon so we'll cut ours by X by this time. It 8 has to be more sophisticated than that. 9 MR JUSTICE HOLGATE: As the agreement recognises, the 10 different states that have signed up to the agreement 11 have reached different points in their economic 12 development. 13 MR CROSLAND: Absolutely so. And there is a great deal of 14 complexity about how you divide off that global budget 15 but there is one point that is clear which is that 16 collectively if countries go over that budget, then 17 collectively they go over the target. 18 In one way or another there are different ways of 19 dividing the pie, so to speak, but the challenge for 20 countries is between them to make sure that their total 21 contributions don't go over that global budget. 22 The point is simply this: to have any coherence 23 about domestic targets there must be a relationship to 24 that global goal. That's the starting point. 25 When we come to the second pillar of government 103 1 policy on climate change adaptation, that is not about 2 how we stop making the problem worse. That is how we 3 adapt to what we know is coming, in some ways what is 4 already in the pipeline. 5 Again, it is critical to know what temperature we 6 are aiming towards. What the scientific models will 7 tell us is with, let's say, 1.5 degrees of warming we 8 can expect to see level rise of X. 9 MR JUSTICE HOLGATE: This takes on board flood risk for 10 example. 11 MR CROSLAND: Precisely. So if you think that we are 12 limiting warming to 1.5 degrees you might build your 13 flood wall this high, and if in fact we are heading to 14 2 degrees that flood wall isn't going to help you much. 15 Again, for adaptation it is absolutely vital we 16 understand what that overall global target is. 17 LORD JUSTICE HICKINBOTTOM: Is that a convenient moment, 18 Mr Crosland? 19 MR CROSLAND: Indeed, my Lords, yes. 20 LORD JUSTICE HICKINBOTTOM: Good. 2 o'clock. 21 (1.00 pm) 22 (Luncheon Adjournment) 23 (2.00 pm) 24 MR JAFFEY: My Lord, as threatened this morning, and as 25 explained in paragraph 1, this is just a summary of the 104 1 evidence and the submissions which the borough and the 2 Mayor and Greenpeace have made about climate change, so 3 you have the references in one place, and there is 4 nothing new there. 5 LORD JUSTICE HICKINBOTTOM: So, this will go in volume 10? 6 MR JAFFEY: Behind the claimant's skeleton argument, yes. 7 MR JUSTICE HOLGATE: End of tab 1? 8 MR JAFFEY: Yes, I think it has pagination. 9 MR JUSTICE HOLGATE: Thank you very much. 10 LORD JUSTICE HICKINBOTTOM: Mr Crosland, we have printed out 11 your speaking note, which is very helpful, thank you. 12 That may speed things up, but we will have the 13 references from that. 14 MR CROSLAND: Just before the break, my Lords, the point we 15 were after was that there is not a third way, as it 16 were, on the global temperature limit. The answer can't 17 be: government policy isn't anchored to any limit. 18 LORD JUSTICE HICKINBOTTOM: The 2 degrees or the 19 1.5 degrees, or the 2 degrees or Paris; as you put it to 20 us before lunch, they are UK commitments. 21 MR CROSLAND: They are via the Paris Agreement. Not in the 22 Climate Change Act. There is no temperature -- 23 LORD JUSTICE HICKINBOTTOM: No, we'll take it by stages. 24 That is a UK commitment. It is an international 25 commitment in the Paris Agreement. 105 1 MR CROSLAND: Indeed. 2 LORD JUSTICE HICKINBOTTOM: But, as we explored before 3 lunch, so far as the UK is concerned, that has to be -- 4 I am not quite sure what the right word is, but then 5 that has to be transposed into some domestic obligation 6 because the fact that the world has to restrict climate 7 increase, the temperature increase to 2 degrees, doesn't 8 help very much because it has to be -- you put it in 9 a sensible way -- fairly shared out between the 197 10 nations in some way. 11 MR CROSLAND: Indeed. 12 LORD JUSTICE HICKINBOTTOM: The way we have done that is 13 through the Climate Change Act. 14 MR CROSLAND: Indeed, which provides for a target to be 15 adjusted, but at the moment, yes. 16 LORD JUSTICE HICKINBOTTOM: Parliament has set, as it were, 17 the domestic law obligation commitment in the terms that 18 it has. Looking at the Act over lunch, that, firstly, 19 has a mechanism for reviewing that target or the year. 20 It has a mechanism for taking into account other 21 greenhouse gases, other than CO2, in section 24. So, it 22 is a fairly comprehensive Act. 23 MR CROSLAND: That sets the target for domestic mitigation. 24 It doesn't deal with adaptation, for example. 25 Adaptation policy, as we were saying before lunch, that 106 1 can involve how high you need to build your flood walls. 2 So, the government policy on climate change may include 3 the Climate Change Act, but it certainly goes beyond it. 4 It is not restricted to the Climate Change Act. 5 LORD JUSTICE HICKINBOTTOM: But in terms of the 6 international obligations, such as -- well, any 7 international obligations, they have to be transposed 8 into domestic obligations because that's -- it is not 9 obvious. A country could say -- I mean, as it were, 10 heaven forbid, but a country could say, "We understand 11 the international obligation to keep the temperature 12 rise to 2 degrees, but we are in fact going to do 13 nothing at all". 14 MR CROSLAND: Absolutely so. Equally, a government could 15 say, "Since our policy is to respect and act upon our 16 international commitments under the Paris Agreement, we 17 will therefore review our domestic legislation to bring 18 it into line with those commitments. That is a policy 19 proceeding the law. 20 LORD JUSTICE HICKINBOTTOM: I'm sorry, it's not bringing it 21 line to the commitment. The commitment is an 22 international commitment, but the -- it is difficult to 23 find the right phrase for this, but you said for a state 24 to bear its fair share of this burden, they have to come 25 to some decisions. A particular country might say, 107 1 "Well, we're in a position to do more than our fair 2 share now", for whatever reason, "And we are prepared to 3 bear more 'pain' now in terms of this burden than we 4 need to do". There is nothing wrong with that. 5 MR CROSLAND: Indeed so. 6 LORD JUSTICE HICKINBOTTOM: But the international obligation 7 needs to be transposed into a domestic obligation. 8 MR CROSLAND: Absolutely. 9 LORD JUSTICE HICKINBOTTOM: The domestic obligation is the 10 Climate Change Act. 11 MR CROSLAND: Currently it is. That is the current domestic 12 legal obligation, which is currently under review. 13 LORD JUSTICE HICKINBOTTOM: You say it is current, but it 14 has a mechanism to change it. It has an internal 15 mechanism to change the variables in the Act. 16 MR CROSLAND: It does, my Lord, and that mechanism has been 17 triggered. 18 LORD JUSTICE HICKINBOTTOM: Yes. 19 MR JUSTICE HOLGATE: In what sense; that at some stage your 20 case is it will have to be changed by virtue of the 21 Paris Agreement. 22 MR CROSLAND: My Lords, in the sense that the first step of 23 that legislative process, under the Climate Change Act, 24 is a review from the climate change committee and that 25 has been tasked by the government and the committee is 108 1 due to report back at the beginning of May. So, that 2 process is underway. 3 LORD JUSTICE HICKINBOTTOM: Then that has to be taken into 4 account by the Secretary of State in the internal review 5 process within the Act. 6 MR CROSLAND: Indeed, in fact, as a matter of law, the 7 Secretary of State for BEIS cannot change the target 8 until he has the advice from the climate change 9 committee, indeed. 10 LORD JUSTICE HICKINBOTTOM: So, that's underway? 11 MR CROSLAND: That is underway, absolutely. 12 LORD JUSTICE HICKINBOTTOM: But we don't know how the change 13 in the international obligation represented by Paris, 14 how that is going to be transposed domestically. We 15 just don't know. 16 MR CROSLAND: We'll come to that a little bit later, 17 my Lords. We have some very good indications, which -- 18 LORD JUSTICE HICKINBOTTOM: We don't know because, as you 19 say, nothing can be decided before the committee has 20 reported. 21 MR CROSLAND: Well, there are a variety of sources of 22 information, including the committee itself, in 2016. 23 They report on the implications, the UK domestic action 24 of the Paris Agreement, and they actually set out in 25 a table -- we can come to this now, ideally we come to 109 1 it just a little bit later. 2 LORD JUSTICE HICKINBOTTOM: No, take this in your order. 3 Not -- 4 MR CROSLAND: I take my Lord's point completely, but we will 5 come to that. 6 LORD JUSTICE HICKINBOTTOM: Yes. 7 MR JUSTICE HOLGATE: Can I ask a question about adaptation? 8 You said adaptation is not covered by the Climate Change 9 Act, but I just want to understand, you said earlier on 10 adaptation relates to the prospect of sea levels rising? 11 MR CROSLAND: As an example. It might also be to what level 12 of heat do our roads and our runways have to be able to 13 withstand? What extremes of heat might be experienced? 14 All those sorts of things. 15 MR JUSTICE HOLGATE: Exactly, that's a fair point. That's 16 reactions to changes in global climatic conditions, so 17 those changes will be driven by, insofar as they change, 18 the global figures. 19 MR CROSLAND: Absolutely so. 20 MR JUSTICE HOLGATE: And they are not affected, as far as 21 I can see, by transposition of those figures into 22 national contributions. 23 MR CROSLAND: Absolutely so. 24 MR JUSTICE HOLGATE: So, that is more to do, is it not, with 25 scientists predicting what's likely to happen to the 110 1 level of the SEA in the future or temperature changes? 2 It is a different sort of point altogether, isn't it? 3 MR CROSLAND: It is. All their predictions are premised on 4 a particular level of warming, so they may able to say: 5 if the world gets to 2 degrees, SEA level rise will be 6 X, maximum temperature will be Y, and therefore we need 7 to plan accordingly. But it all depends on that 8 anticipated global temperature rise. Of course, there's 9 a third strand of government policy -- 10 MR JUSTICE HOLGATE: We talking about predicting what is 11 likely to happen on a global scale, not on a national 12 scale. That was the point I was trying to get to. 13 MR CROSLAND: That is correct, but it is from interpreting 14 or predicting what happens at the global scale that you 15 then follow through from that and say, well the 16 implications for the UK of a 2 degree global rise would 17 be X. The implications for Germany, for Berlin, would 18 be Y. 19 MR JUSTICE HOLGATE: It would depend on the rate at which 20 different countries around the world will seek to 21 implement the Paris Agreement. 22 MR CROSLAND: Indeed. The third strand of government 23 policy, which has been very prominent and significant is 24 its diplomacy. What it is trying to encourage other 25 countries to do, and our future depends on that just as 111 1 much. 2 MR JUSTICE HOLGATE: Yes. 3 LORD JUSTICE HICKINBOTTOM: Yes. 4 MR CROSLAND: So if we take that premise, that either the 5 government policy, as distinct from legislation, must be 6 linked to some global level of temperature rise. In our 7 submission, the consequences of this court adopting the 8 Secretary of State's position, that the Paris limit is 9 irrelevant and, by inference, we assume that the 10 2 degree C limit is the relevant one, the consequences 11 would be surprising and unfortunate, unless and until 12 the Climate Change Act is amended and given other things 13 on the government's mind that might be some time. 14 Whatever the will, whatever the policy intent, in the 15 interim a minister exercising their powers under the 16 Planning Act couldn't take the Paris Agreement into 17 account, even if they wanted to because it would have 18 a precedent that says that is an irrelevant 19 consideration. 20 To the contrary, the minister would be bound to take 21 into account the 2 degree C global limit, even though 22 the government has rejected that as inadequate because 23 the court would have held that was a relevant 24 consideration. 25 LORD JUSTICE HICKINBOTTOM: The Climate Change Act, which 112 1 transposes 2 degrees into domestic law -- is that a fair 2 way of putting it? 3 MR CROSLAND: When we come to the carbon traded scenario, 4 the Secretary of State's witnesses, they don't refer to 5 the Climate Change Act because it just doesn't deal with 6 that. Instead, they expressly refer to the 2 degree C 7 limit, which is not there in national law. It is 8 a historic discredited target. 9 MR JUSTICE HOLGATE: Yes, but would it be right to say that, 10 at some point, the figures in the 2008 Act were derived 11 from what was then the 2 degree parameter? Or do we not 12 know? 13 MR CROSLAND: Some of the assumptions -- maybe this gets 14 a little technical -- on which that target was based 15 initially, for example that global emissions would peak 16 in 2016, those have turned out to be false, 17 unfortunately, by history; global emissions didn't peak 18 in 2016. 19 So, even on its own terms, in some ways there would 20 be a case for considering that, but maybe this isn't 21 necessary to arguments here. 22 MR JUSTICE HOLGATE: Yes, thank you. 23 MR CROSLAND: Then, just before we get into the documentary 24 evidence, if I may just say a little bit more about the 25 relationship between our different grounds of claim. 113 1 Our primary submission is ground 1, that the Paris 2 Agreement is now already part of government policy, 3 particularly the Paris temperature limit. 4 The relevance of our ground 3, which is the Human 5 Rights Act argument, that's only the interpretative 6 provision of the HRN section 3. So, that only really 7 arises if the court considers there's some ambiguity in 8 relation to section 5(8). 9 My Lord, that is reflected in the list of issues. 10 Really, our issues are numbers 15 to 18. Mr Maurici 11 will correct me if I have this wrong, but I think we can 12 now dispense with issue 17. I understand that the 13 Secretary of State has now conceded that Plan B may 14 raise an argument under section 3 and we are not 15 prohibited from doing so by virtue of section 7. So, we 16 can strike out issue 17 or just put a "yes" as the 17 answer. 18 So, issue 16, which is the Human Rights Act 19 argument, this really only arises in the event of 20 ambiguity. The essence of that is that if -- 21 a provision is ambiguous and one interpretation which 22 says we must exclude reference to the Paris Agreement 23 temperature limit is likely to have adverse consequences 24 for human rights. The other interpretation, which is 25 that we should read it as including the Paris Agreement, 114 1 will not have those adverse consequences, then the 2 interpretation without the adverse consequences for 3 human rights safeguards should be preferred. It is 4 really a simple interpretive point. 5 It may be that my Lords would ask: why are you 6 raising the rationality argument at all, because that is 7 a higher hurdle for you on essentially the same point? 8 Your argument is more or less the same. It is about the 9 Paris Agreement. 10 There are two reasons why we raise that argument in 11 addition to the section 5(8) argument. 12 The first is that if this court agrees with 13 Mr Maurici, that section 5(8) relates effectively only 14 to legislative commitments and obligations, then we 15 would still wish to argue that, in any event, 16 irrespective of section 5(8), the Paris Agreement was 17 clearly a relevant consideration in the scheme of 18 things. It was something people should turn their minds 19 to. So, that's a technical reason for advancing the 20 rationality argument. 21 There is also an argument that may or may not be 22 relevant to relief. We accept that the threshold for 23 rationality claims is high. In one sense, we welcome 24 that. We say the defence of the Secretary of State, his 25 position at the Paris Agreement was irrelevant, is 115 1 unusual, exceptional, and if we are able to satisfy that 2 high threshold on rationality, that may assist us on our 3 relief submissions. 4 If I may now go to the bundles and really take the 5 court through the evidence, which we say supports our 6 basic propositions. Starting with bundle 13, tab 9, 7 page 103. This is some context about the thought 8 process underpinning the original 2008 Act target. At 9 page -- 10 MR JUSTICE HOLGATE: I just wonder if this might help, 11 because it picks up a question asked by my Lord a moment 12 ago, in the statement of common ground, dealing with 13 climate change, paragraph 6, we are told that when the 14 2008 Act came into force, establishing the carbon target 15 of 80 per cent reductions by 2050 with the objective of 16 limiting global warming to 2 degrees C. 17 MR CROSLAND: Indeed. This is precisely the point I was -- 18 MR JUSTICE HOLGATE: Which is why I tried to formulate the 19 question a moment ago: 20 "Historically, at the time the Act was enacted ..." 21 I knew I had read it somewhere, amongst -- 22 MR CROSLAND: This is a piece of common ground, I think, 23 between all parties. 24 MR JUSTICE HOLGATE: Does that help? 25 MR CROSLAND: Certainly it helps. It is an important part 116 1 of our submissions. 2 LORD JUSTICE HICKINBOTTOM: You have already stressed this 3 I think, speaking for myself, rightly, that the starting 4 point is the temperature. That is the starting point 5 for pretty well everything. That is what you start 6 with. 7 MR CROSLAND: Yes. 8 LORD JUSTICE HICKINBOTTOM: So, the starting point then was 9 the 2 degrees, and that worked through, eventually, to 10 the carbon target in the Act. 11 MR CROSLAND: That's right. So, again, you see that just 12 confirmed on page 106, paragraph 64. This was the Royal 13 Commission's overarching aim, to limit rise to no more 14 than 2 degrees. 15 Then if we turn over the page, to 65, the Committee 16 interrogates the Secretary of State and their concern at 17 the time is the proposed 60 per cent reduction, which is 18 contained in the Climate Change Bill. It isn't 19 sufficient to meet the policy objective, which is the 20 2 degree target. 21 At paragraph 65: 22 "The Secretary of State confirmed to us that the 23 government is still completely committed to limiting 24 global warming to a rise of 2 degrees C." 25 They quote the Secretary of State: 117 1 "Just to put that in perspective, I was told that 2 with a 2 degree average change, it will not be uncommon 3 to have a 50 degrees C in Berlin by mid-century, and 4 I think this is quite a sobering demonstration. 5 So, the discussion here is the Secretary of State 6 making it clear that government policy is to limit 7 warming to 2 degrees, and that the purpose of the 8 legislation is to implement that policy. 9 Then if we turn to page 108 and paragraph 69, the 10 committee critique the approach contained in the Bill 11 and they say this is incoherent because, on the one 12 hand, we have the Secretary of State telling us it's 13 vital that we limit warming to 2 degrees, but on the 14 other hand -- and if we just turn over the page to 15 109 -- the proposed 60 per cent reduction by 2050 would 16 leave a 63 per cent to a 99 per cent chance of exceeding 17 2 degrees Celsius." 18 Lord Stern had described that as a very dangerous 19 place to be with substantial risks of very unpleasant 20 outcomes. 21 So, the committee is saying to the minister: well, 22 if you are telling us it is so important to limit 23 warming to 2 degrees, then a policy that only gives us 24 a 1 in 3 chance of doing that, that doesn't make a lot 25 of sense. 118 1 The upshot of this interrogation is the 2 Prime Minister asks the committee to review the 3 position. 4 If we now move to tab 10 of the bundle, page 111, 5 this is Lord Turner, who was the first chair of the CCC. 6 He writes to the Secretary of State saying: 7 "Well, actually, we think the Committee were right, 8 the 60 per cent reduction wasn't enough to give effect 9 to government policy. What we needed is an 80 per cent 10 reduction." 11 If we go to page 113, what Turner says is: 12 "To determine a UK emissions reduction target we 13 first considered what a global target should be, and 14 then the UK's appropriate contribution. The global 15 emissions target needs to be based on an analysis of the 16 climate science." 17 Then: 18 "The crucial issue is what level of global 19 temperature the world should seek to avoid and what 20 emissions path will keep us below this temperature." 21 My Lords, this is just as an aside, if you look at 22 the paragraph just below the bullet points, he also 23 says: 24 "If a 4 degrees Celsius rise were reached, extreme 25 consequences, potentially beyond our ability to adapt, 119 1 would arise." 2 If we may turn, just briefly to tab 22 of the 3 bundle, the Clean Growth Strategy -- 4 LORD JUSTICE HICKINBOTTOM: Which page? 5 MR CROSLAND: Page 203, the final sentence on page 203: 6 "Without significant reductions in emissions the 7 world is likely to be on course for average temperature 8 rises in excess of 2 degrees Celsius above preindustrial 9 levels and possibly as much as 5 degrees Celsius by the 10 end of the century." 11 So, this is the government's report from 2018 and 12 they don't, you know, labour on the consequences. But 13 if we track back to Lord Turner's letter: 14 "5 degrees Celsius is beyond the point of extreme 15 danger." 16 The next document, my Lords, tab 13, page 149. This 17 is really just a little bit of background about the 18 history of the Paris Agreement and that change to the 19 long-term goal. This is perhaps the first important 20 point when it is discussed. This is 2011. The chair of 21 the UN secretariat at the time, Christiana Figueres: 22 "Two degrees is not enough", she says, "We should be 23 thinking of 1.5 degrees. If we are not headed to 24 1.5 degrees, we are in big, big trouble." 25 Then the Article says: 120 1 "Scientists estimate 2 degrees of warming is the 2 limit of safety, beyond which climate change becomes 3 catastrophic and irreversible." 4 Then, tab 15, a bit closer to home, this is 5 Lord Stern, formally chief economist for the World Bank, 6 and it was Stern's report on the economics of climate 7 change that was the background for the Climate Change 8 Act, the Stern Review of 2007. 9 In 2013, he comes out and says it is much, much 10 worse. It is focused on the impact to the economy. The 11 atmosphere seem to be absorbing less than we expected, 12 emissions rising strongly: 13 "This is potentially [page 160] so dangerous that we 14 have to act strongly. Do we want to play Russian 15 roulette with two bullets or one? These risks for many 16 people are existential." 17 Then a little bit further down, we have Jim Yong 18 Kim, just recently departed president of the World Bank. 19 He says: 20 "There will be water and food fights everywhere." 21 That is not the sort we had at school, I don't 22 think. 23 So, this is the background to the changing view of 24 the limits on the adequate global temperature goal. 25 Then, tab 16, the conference of the parties, which 121 1 is -- 2 MR JUSTICE HOLGATE: I don't have tabs. 3 MR CROSLAND: Page 161, my Lord. 4 MR JUSTICE HOLGATE: Thank you very much. 5 MR CROSLAND: Against that context, the governments that are 6 parties to the UN Framework Convention on Climate 7 Change, in 2013, they commission an expert review of the 8 adequacy of that 2 degree goal. 9 At 161, we have excerpts from the final report of 10 that expert review. It takes place over a period of two 11 years. You will see, on that first page, it summarises 12 the dialogue that has taken place with over 70 experts. 13 Go to page 163. There is a box on that page and 14 there is some text in bold: 15 "The guard rail concept in which to up to 2 degrees 16 Celsius of warming is considered safe is inadequate." 17 MR JUSTICE HOLGATE: It goes on to say: 18 "Better seen as an upper limit, the defence line 19 that needs to be stringently defended, whilst less 20 warming would be preferable." 21 MR CROSLAND: Indeed. 22 Over the page, 164, paragraph 108: 23 "Experts emphasise the high likelihood of meaningful 24 differences between 1.5 degrees Celsius and 2 degrees 25 Celsius of warming regarding the level of risk from 122 1 ocean acidification and of extreme events or tipping 2 points ..." 3 So, once you start to go beyond 1.5, the risk of 4 those tipping points becomes much higher. 5 LORD JUSTICE HICKINBOTTOM: So, this is scientific knowledge 6 concerning climate change developing? 7 MR CROSLAND: Yes, this is the background to the Paris 8 Agreement. 9 The next two excerpts, my Lord, relate to some of 10 the branches of government that were instrumental in 11 securing the Paris Agreement. 12 So, this first extract, this is a Foreign and 13 Commonwealth Office intervention in 14 a UN Security Council meeting on climate change. The UK 15 delegate says -- this is page 165: 16 "As an island state, we too face risks; risks of 17 losing land to the sea, flooding. However, our first 18 national climate change assessment, two years ago, found 19 it could be the indirect impacts of climate change which 20 present the greatest risk. We may see food price 21 spikes, large scale migration and even state failure." 22 Then page 167, third paragraph down: 23 "In Europe, the worst natural disaster of recent 24 times was the extreme heat wave of the summer of 2003, 25 in which more than 70,000 people died. 123 1 "Scientists estimate that such an event is already 2 ten times more likely to happen today and that will it 3 be become very common in a few decades' time." 4 On the last page, 168, you will see that he talks 5 about the significance of the Paris negotiations. At 6 that point, pre-Paris, still talking about the 2 degree 7 target, and he concludes: 8 "That is why we must approach climate change in the 9 same way we approach any other grave threat to our 10 international security -- with urgency, effectiveness 11 and determination." 12 Page 169. Again, this is just in the build-up to 13 the Paris Agreement, September 2015. This is 14 Mark Carney, the governor of the Bank of England and 15 again, he is talking about financial stability, economic 16 consequences. He is addressing Lloyd's of London, 17 addressing the insurance industry. 18 Page 171. He says: 19 "It is not surprising the insurance industry are 20 a bit ahead of the curve on this. They are dealing with 21 the impacts." 22 At page 172: 23 "Inflation adjusted insurance losses from these 24 events have increased from an annual average of 25 10 billion in the 1980s to around 50 billion over the 124 1 past decade. The challenges --" 2 MR JUSTICE HOLGATE: Top paragraph, 172? 3 MR CROSLAND: My Lords, yes: 4 "The challenges currently posed by climate change 5 pale in insignificance compared with what might come. 6 The far-sighted amongst you are anticipating broader 7 global impacts on property, migration and political 8 stability." 9 LORD JUSTICE HICKINBOTTOM: This document doesn't assist you 10 with the proposition you are pressing now because this 11 is a 2 degree document. 12 MR CROSLAND: Indeed, as all documents were before Paris, 13 because that was the global temperature limit at the 14 time. 15 LORD JUSTICE HICKINBOTTOM: Yes, this was all about the 16 desirability of restricting the temperature to 17 2 degrees. There is no suggestion here it should be 18 below. 19 MR CROSLAND: My Lords, that is absolutely correct. The 20 relevance of this is just to show how important the 21 Paris Agreement was to all branches of government, not 22 just the department of energy and climate change. We 23 had interventions from the Foreign and Commonwealth 24 Office. We had interventions from the governor of the 25 Bank of England and all of them are saying: this Paris 125 1 Agreement is so important. 2 That is the point, at this stage. 3 LORD JUSTICE HICKINBOTTOM: Yes. 4 MR CROSLAND: Then, my Lords, finally we get to the Paris 5 Agreement itself, which is C25 of the authorities 6 bundle. My learned friend has taken the court through 7 that. 8 LORD JUSTICE HICKINBOTTOM: Yes. 9 MR CROSLAND: October 2016, this is page 187 of the same 10 bundle. 11 Again, Mr Wolfe has highlighted various parts of 12 this document already. One important point to make is: 13 nowhere in this official document of the climate change 14 committee does it say that the current target might be 15 consistent with the Paris Agreement. It just doesn't 16 say that. 17 On the contrary, it says the Paris Agreement is 18 a significant step in global action to tackle climate 19 change. It says the time is not right to change the 20 targets now, but we need to maintain the flexibility to 21 go further. This is all on page 189. 22 Page 190 -- 23 LORD JUSTICE HICKINBOTTOM: Page 189, what this says is -- 24 because this is obviously looking at the Act, and this 25 says: 126 1 "Don't do anything now." 2 And it says towards the bottom of the page: 3 "We agree with the government's intention to set 4 a new target in future that reflects the global nature 5 of net zero emissions." 6 That is just one aspect of Paris. 7 So, there was an understanding that the Act might 8 have to be -- the review mechanism in the Act may have 9 to be triggered, probably would have to be triggered, 10 but not now it said. 11 MR CROSLAND: Exactly. Wait for further evidence, such as 12 the IPCC report. 13 LORD JUSTICE HICKINBOTTOM: Yes. 14 MR CROSLAND: That position is summarised, page 190. The 15 paragraph just before that heading "Net zero emissions": 16 "We welcome the government's commitment to ratifying 17 the Paris Agreement. The clear intention of the 18 agreement is that efforts should increase over time. 19 While relatively ambitious, the UK's current emissions 20 targets are not aimed at limiting global temperature to 21 as low a level as in the agreement." 22 Then page 191, there is a table in the middle of 23 that page: 24 "Timescales for reaching global net zero emissions 25 consistent with Paris Agreement aims." 127 1 You see there these different boxes, separated for 2 carbon dioxide or greenhouse gases: 3 "For a return to 1.5 degrees Celsius, globally 4 carbon dioxide will need to reach net zero in the 5 2040s." 6 MR JUSTICE HOLGATE: Why does it say "returned to 1.5"? 7 MR CROSLAND: What that means is the concept is sometimes 8 termed "overshoot". You go beyond 1.5 and then you hope 9 that through extraction technologies you can somehow 10 haul it back. 11 MR JUSTICE HOLGATE: Okay, sorry. 12 Yes, I think that is explained three lines down in 13 the note. Okay, I am sorry. Thank you. 14 MR CROSLAND: So, the important point about this is that 15 even in 2016 there was pretty good information from the 16 climate change committee saying: if we want to be 17 consistent with 1.5 degrees, then the whole world is 18 going to have to reduce its carbon dioxide to zero. 19 Page 194, just the last two points. The second 20 paragraph on page 194: 21 "Global paths to keep close to 1.5 degrees Celsius, 22 at the upper end of the ambition in the Paris Agreement, 23 imply UK reductions of at least 90 per cent below 1990 24 levels, and potentially more ambitious efforts." 25 If we move now to page 197. This is back to the 128 1 Clean Growth Strategy, published under sections 12 and 2 14 of the Climate Change Act. The government policy on 3 climate change. 4 At page 200, this is the Prime Minister's forward to 5 the document. At the end of that third paragraph: 6 "On the world stage, we were instrumental in driving 7 through the landmark Paris Agreement." 8 Page 201, this is the minister's forward. Fifth 9 paragraph down, on the left-hand side: 10 "Following the success of the Paris Agreement, where 11 Britain played such an important role in securing the 12 landmark deal, the transition to a global low carbon 13 economy is gathering momentum." 14 Next page, we have already looked at this as the 15 introduction, page 202. What the government says here 16 is: 17 "Actions and investments will ensure the shift to 18 clean growth will be at the forefront of policy and 19 economic decisions made by governments in the coming 20 decades." 21 In other words, those temperature limits, they set 22 the benchmark for these major projects, major economic 23 decisions. 24 It then talks about the decision by the US to: 25 "... withdraw from the Paris Agreement served to 129 1 bring together and bolster action internationally on 2 climate change, with many countries underlining their 3 commitment to the Paris Agreement in the days and weeks 4 that followed." 5 My Lords, page 205, this is the explanation of why 6 the government pushed for more ambitious targets in the 7 Paris Agreement. If you look at that first paragraph: 8 "Scientific evidence shows that increasing 9 magnitudes of warming increase the likelihood of severe, 10 pervasive and irreversible impacts on people and 11 ecosystems. These impacts increase rapidly above 12 2 degrees Celsius and some risks are considerable below 13 2 degrees Celsius. This is why, as part of the Paris 14 Agreement, 195 countries committed to the lower limit, 15 the Paris Agreement limit." 16 So, here we have government policy on climate 17 change, published under the Climate Change Act, saying: 18 this is why the 2 degree limit isn't good enough. This 19 is why we have to work to the Paris limit. 20 Then, on that page, on the right-hand side, the last 21 paragraph, you will see the government confirming the 22 advice from the committee: 23 "The Paris Agreement is more ambitious than both 24 the ambition underpinning the UK 2050 target and 25 previous international agreements." 130 1 And: 2 "The committee has advised that the UK's fair 3 contribution should include measures to maintain 4 flexibility to go further on UK targets." 5 Then if we go to page 245. This is the climate 6 change committee's response to the Clean Growth 7 Strategy. This is the passage, in fact, that is in the 8 statement of common ground: 9 "However, the Paris Agreement is likely to require 10 greater ambition by 2050 and it is therefore essential 11 that actions are taken now to enable these deeper 12 reductions to be achieved." 13 Of course, the converse of that is what we must not 14 do is take actions that preclude greater ambition, that 15 make it impossible to achieve. 16 MR JUSTICE HOLGATE: Sorry, you took us to page 205. 17 MR CROSLAND: 245, my apologies. 18 MR JUSTICE HOLGATE: Yes, but previously we were at 205, 19 I am sorry I am a little bit slower, but you stressed 20 the text on the left-hand column, and I have just been 21 noting the text in the right-hand column below 3, UK 22 climate change action, yes. Sorry. My Lord is ahead of 23 me. 24 LORD JUSTICE HICKINBOTTOM: Starting with the words: 25 "But the UK should not set new UK target emissions 131 1 now." 2 MR CROSLAND: Yes, this is common ground. 3 LORD JUSTICE HICKINBOTTOM: So, there is an international 4 commitment, but no change to the Act now. 5 MR CROSLAND: No, the committee said it isn't the right time 6 to make the changes now, but we need to maintain the 7 flexibility to go further because Paris is likely to 8 require greater ambition. 9 LORD JUSTICE HICKINBOTTOM: Yes. 10 MR CROSLAND: Then page 246. This is still the committee's 11 response to the Clean Growth Strategy. Fifth paragraph 12 down: 13 "Furthermore, deeper reductions will be required to 14 meet the aims of the Paris Agreement." 15 LORD JUSTICE HICKINBOTTOM: Which paragraph is that? 16 I missed that. 17 MR CROSLAND: If we ignore the bulleted paragraph, it is 18 then the fourth paragraph down on page 246. 19 It is then in this report, the next paragraph, that 20 they make the recommendation to government to commission 21 a review following the IPCC report. That is the 22 additional evidence base that the Committee is looking 23 for. 24 Move forward to page 249. This is the government's 25 25 year plan to improve the environment, also published 132 1 in January 2018. 2 Then, page 252, the last paragraph of the main text, 3 on the right-hand side of the page: 4 "Using our leading role in the UNFCCC, through which 5 the Paris Agreement was established, we will urge the 6 international community to meet the goals enshrined in 7 the text. This is vital for future environmental 8 security." 9 In other words, using its diplomatic facility, the 10 government is going to be telling other countries: it is 11 so important you meet that commitment, that 1.5, well 12 below 2 degree commitment. We all need to work together 13 on this. 14 Of course, that's going to be made harder if the UK 15 itself says: when it comes to our decisions, we are 16 actually going to work to the old historic 2-degree 17 limit. 18 LORD JUSTICE HICKINBOTTOM: Although, in the left-hand 19 column, adjacent to that it says: 20 "We will continue to set an example, reducing air 21 emissions from 1990 levels by at least 80 per cent by 22 2050." 23 MR CROSLAND: "At least", that is the state of play as it 24 stands in terms of the legislation. "At least." 25 LORD JUSTICE HICKINBOTTOM: Yes. 133 1 MR CROSLAND: Then we are nearly there with the documents. 2 This is just moving through chronologically. 253. This 3 is the European Parliament's response to the Paris 4 Agreement. You will see that on that right-hand side. 5 These are the amendments that were approved by the 6 European Parliament. The bold text in line with the 7 2015 Paris Agreement on climate change, we are making 8 various amendments. The key one actually is page 256. 9 Amendment 6A: 10 "The Paris Agreement substantially increased the 11 level of global ambition on climate change mitigation. 12 The union needs to prepare for much deeper and faster 13 cuts in emissions than previously foreseen. 14 "At the same time such reductions are feasible at 15 a lower cost than previously assessed given the pace of 16 development and deployment of renewable energy 17 technologies." 18 Then the other significant amendment is 6B, 19 amendment 9: 20 "In line with the aim of the Paris Agreement, the 21 union should aim on an equitable basis to reach net zero 22 emissions domestically by 2050." 23 Followed by a period of negative emissions." 24 Then, page 287, this is a response from the FCO to 25 a written question: 134 1 "What diplomatic steps is the department taking to 2 support the implementation of the Paris Agreement on 3 climate change?" 4 The response from the FCO: 5 "Climate change is an existential threat, but also 6 an opportunity to drive a global clean economy 7 revolution. Our diplomats and climate envoy are working 8 with BEIS and international partners, to ensure 9 international implementation of Paris Agreement 10 commitments ..." 11 Again, my Lords, our point here is simply that those 12 efforts are going to be much harder if when it comes to 13 our own projects we use the old carbon. 14 Page 290, this is the government, through the energy 15 minister, Claire Perry, but she is speaking for the 16 government, addressing Parliament. She says in response 17 to her opposite number, the shadow minister: 18 "He will also know we are the first developed nation 19 to have said we want to understand how we will get to 20 a net zero carbon economy in 2050." 21 We were the first country in the world to ask how we 22 would get to a decarbonised economy in 2050: 23 "I hope we would enjoy cross party support for 24 something so vital." 25 Now, that, of course, my Lords, is not a guarantee 135 1 from the government that they are going to introduce 2 a net zero by 2050 target, but it is a pretty clear 3 statement of policy intent: we want to know how to get 4 there. We want advice on how we do that, in line with 5 what the European Parliament has said, in line with what 6 others are doing. 7 My Lords, that is the main background that I wanted 8 to draw to the court's attention. 9 LORD JUSTICE HICKINBOTTOM: Yes. 10 MR CROSLAND: In our submission, it makes two points pretty 11 clear. The first is that whatever policy considerations 12 you are talking about, whether it is mitigation, whether 13 it is adaptation, whether it is diplomacy, the anchor 14 for all of those is that temperature limit. 15 The second point is that, since December 2015, the 16 UK has shifted. We saw those statements from 17 Mark Carney and the FCO before Paris. As my Lords 18 pointed out, they are talking about 2 degrees Celsius 19 there. But, after Paris, all the statements of 20 government policy talk about the Paris limits, how we 21 are going to work to implement the Paris limit. So, 22 those are the points we say are amply demonstrated by 23 the documentary evidence of government policy and the 24 shift that has taken place since December 2015. 25 LORD JUSTICE HICKINBOTTOM: So, you say that these represent 136 1 a significant development in scientific knowledge about 2 climate change? 3 MR CROSLAND: Not just scientific knowledge, in terms of 4 international and domestic policy. 5 LORD JUSTICE HICKINBOTTOM: If that's right, why doesn't 6 that fall under the Act? 7 The Act has transposed 2 degrees, we saw that, that 8 was the -- as you say, it is the anchor, and that 9 transposed that through to a domestic commitment, 10 a legal commitment on behalf of the UK Government to 11 reduce CO2 emissions by 80 per cent by 2050. 12 MR CROSLAND: Yes. 13 LORD JUSTICE HICKINBOTTOM: There is a mechanism within the 14 Act for changing that commitment, both in terms of time, 15 in terms of percentage, in terms of gases under 16 section 24, subject to various parameters -- 17 MR CROSLAND: Indeed. 18 LORD JUSTICE HICKINBOTTOM: -- if there has been significant 19 development in scientific knowledge about climate 20 change, but there is a rigmarole to go through for 21 a change under the Act. 22 MR CROSLAND: Indeed. 23 LORD JUSTICE HICKINBOTTOM: For example, consultation. So, 24 why doesn't all of that fall under the Act? 25 Wouldn't a policy that changed this be a policy that 137 1 was inconsistent with an Act of Parliament? 2 MR CROSLAND: My Lords, the process for implementing policy 3 into law is set out in the Climate Change Act, and that 4 process is underway. But you start with the policy, as 5 we did in, let's say, 2006, the government's policy to 6 make a fair contribution to the 2-degree goal, that's 7 before we have any law. It is still the government's 8 policy. Then that policy is implemented through the 9 Climate Change Act. 10 We said we had a parallel situation here in 2019. 11 The government's policy now is to implement the Paris 12 temperature limit, not the 2-degree limit. That is why 13 they have requested advice from the climate change 14 committee. What the climate change committee are 15 advising on is what you need to do in order to implement 16 your policy. That is precisely what they are doing. 17 So, that process has been triggered. It is underway. 18 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 19 MR CROSLAND: My Lords, maybe this is a convenient moment 20 for a -- 21 LORD JUSTICE HICKINBOTTOM: Yes, about how far are you 22 through the submissions? 23 MR CROSLAND: My Lords, I do expect to use the rest of the 24 day, if that's okay, as originally allocated? But I am 25 a good chunk of the way through, I have made good 138 1 progress. 2 LORD JUSTICE HICKINBOTTOM: But is now a good time to break? 3 MR CROSLAND: Indeed. 4 LORD JUSTICE HICKINBOTTOM: We'll break for ten minutes. 5 (3.00 pm) 6 (A short break) 7 (3.10 pm) 8 MR CROSLAND: I am shortly going to come on to how the 9 Secretary of State addressed the Paris Agreement through 10 the consultation process. Just before I do that, one or 11 two points I'd like to highlight from the statement of 12 common ground. 13 The first is paragraph 11 of the climate change 14 annex, which is bundle 6, page 67. 15 At paragraph 11, my Lords, there is a reminder that 16 the planning assumption for aviation, that 17 37.5 million tonnes of carbon dioxide in 2050, actually 18 that isn't there in the Climate Change Act at all. That 19 planning assumption is independent of the Act. 20 What is said is, if that is the assumption we take, 21 then that national 80 per cent emission reduction's 22 target is going to have to be delivered by the rest of 23 the economy making more ambitious cuts of 85 per cent. 24 Then this is the really important quote, this is from 25 the CCC's 2009 report. This is later referred to by 139 1 Carnwath in the 2010 cases, developments in policy. It 2 is the CCC's report, not the 2008 legislation. 3 What the CCC say is: 4 "It is perfectly possible there might be scope to 5 reduce emissions more in other sectors, which would then 6 allow aviation demand to grow. However, this may well 7 be the limit here and in other developed countries 8 compatible with achieving the internationally agreed 9 climate objective." 10 In other words, the Committee are saying, "When we 11 formulate that planning assumption, it needs to have 12 regard to the international objective, the international 13 limit", which at the time was 2 degrees. 14 Just one or two points to make on -- from the 15 general statement of common ground. That's bundle 6, 16 tab 3, page 11. 17 The first point is when we get to paragraph 6, just 18 to point out, halfway through that paragraph, policy 19 support for the new third runway. It is the ordinary 20 use of the word "policy". "Policy support" as distinct 21 from "statutory support". 22 We get to paragraph 47, on page 49, really just to 23 note that, as per the consultation documents, when the 24 carbon traded scenario is explained in its statement of 25 common ground, there is no reference to 2 degrees, and 140 1 that is an omission that is replicated, as far as we can 2 see, throughout the process. We only find out about it 3 when we get the Secretary of State's witness statements. 4 Paragraph 168, already been referred to, the 5 precautionary principle. Foundational principle of 6 international and national law. Where there is 7 uncertainty, that's an argument for more action not 8 less. 9 If you don't know the answer to something, as 10 Mr Jaffey aptly put it the other day, it doesn't make 11 the answer zero. That is the wrong answer. 12 Then, finally, last point from the statement of 13 common ground at paragraph 171, the case of Moseley. 14 The fourth point from Moseley is that the product of 15 consultation must be conscientiously taken into account, 16 and that leads us, my Lords, into the next part of our 17 submissions, the way in which the government dealt with 18 this point through the consultation process. 19 If we go to bundle 8, page 463. This is the 20 government response to the consultations on the ANPS. 21 Page 530, at paragraph 8.17. Here you have the point 22 that many of the respondents argue that the expansion 23 leads to a rise in carbon emissions which will threaten 24 the UK's ability to meet its domestic and international 25 climate commitments. This was covered earlier by 141 1 Mr Wolfe. 2 Specific reference to the Paris climate agreement. 3 At the end of that paragraph, and then likewise, 4 page 534, paragraph 8.42: 5 "Several respondents contended that the UK's current 6 emissions targets under the Act were adopted before the 7 Paris Agreement and therefore needed to be updated." 8 But the significant thing, we say, my Lords, about 9 that is the government's response, which we get at 8.18. 10 The government notes the concerns raised about the 11 impact of expansion on the UK's ability to meet its 12 climate change commitments. The government has a number 13 of international and domestic obligations. 14 Then, at 8.19, it talks about the Paris Agreement. 15 Rather unfortunately it gets the Paris Agreement's 16 target wrong. It says it is to pursue efforts to limit 17 warming to well below 2 degrees. That's not right. The 18 pursue efforts is 1.5 degrees. The commitment is well 19 below 2 degrees. 20 So, people reading this, my Lords, in our 21 submission, would be left with the distinct impression 22 that the government had taken the Paris Agreement into 23 account, and certainly what they weren't told was: in 24 the government's opinion, the Paris Agreement is not 25 relevant. 142 1 Had they been told that, people might have had an 2 opportunity to make submissions on that point. 3 Then we look at the post-adoption statement. This 4 is bundle 9, for those with tabs, tab 14, page 722. In 5 fact, if we could start with page 721, apologies. You 6 see the section "Carbon emissions". 7 MR JUSTICE HOLGATE: Sorry, will you forgive me? You gave 8 us another reference in your speaking note. Just before 9 we look at that, page 534, it might help the court, of 10 the consultation response. Paragraph 8.42: 11 "Several respondents contended the UK's current 12 carbon emissions target under the 2008 Act were adopted 13 before the ratification of the 2015 Paris climate 14 agreement, therefore it needs to be updated." 15 You get a direct response to that from the 16 government in 8.43. 17 MR CROSLAND: My Lords, yes, that is correct and, again, 18 I mean, it is the same point we made about the earlier 19 passage. The one thing the government does not say is: 20 in our opinion, the Paris limit is irrelevant unless and 21 until the Climate Change Act is amended. 22 MR JUSTICE HOLGATE: They said that the NPS is not the right 23 vehicle for taking forward or setting wider government 24 policy. Because, let's face it, the implications of the 25 Paris Agreement affect the country as a whole and not 143 1 just decision making in relation to Aviation Strategy. 2 MR CROSLAND: Yes. Of course, that's true. 3 MR JUSTICE HOLGATE: It affects everything. 4 MR CROSLAND: It affects everything. 5 MR JUSTICE HOLGATE: Sorry, I interrupted you, I beg your 6 pardon. 7 MR CROSLAND: That's helpful, my Lord. 8 Now, on to the post-adoption statement, which is 9 bundle 9, tab 14, page 721. Really just to see the 10 heading at 4.49, "Carbon emissions". 11 Then we go over the page, the government responds: 12 "The government acknowledges the scheme is likely to 13 result in an increase in emissions. Any increase must 14 be kept within UK's commitments. This has been 15 considered under two future policy scenarios. Meeting 16 the UK's overall's emission targets in the carbon cap 17 case and meeting the UK's commitments under any future 18 international agreement in a carbon traded case." 19 So, if the Secretary of State's submissions are 20 that, actually, international agreements are not 21 relevant unless and until they are adopted international 22 law, well, this would have left people confused, 23 my Lords, because a distinct impression created by those 24 words is that the carbon traded scenario has been 25 considered against, not just present, but future 144 1 international agreements. 2 Again, the point is not just what is said, it is 3 what isn't said. There is no indication whatsoever that 4 the Secretary of State considers the Paris Agreement 5 irrelevant. 6 Then back to bundle 13, page 293. This is the 7 letter from the climate change committee, both the 8 chair, Lord Deben, and the deputy, Baroness Brown. 9 In our submission, this is a striking letter. The 10 climate change committee are funded by central 11 government. Everybody is aware that there are going to 12 be legal challenges to the ANPS, and the climate change 13 committee write an open letter to the minister saying: 14 "The government has committed, through the Paris 15 Agreement, to limit the rise in global temperature to 16 well below 2 degrees and to pursue efforts to 1.5. We 17 were surprised that your statement to the House of 18 Commons on the national policy statement made no mention 19 of these commitments." 20 So, my Lords, when the Secretary of State properly 21 invokes the climate change committee as the experts 22 within government in this area, that's a double edged 23 sword for his position because the climate change 24 committee themselves have made it clear that, in their 25 view, the Paris temperature limit was a relevant 145 1 consideration, and have publicly expressed their 2 surprise that the Secretary of State made no mention of 3 it. 4 They conclude by saying: 5 "We would welcome the opportunity to discuss these 6 matters more fully." 7 The Secretary of State's reply -- I think we don't 8 have the original in the bundle. It is -- 9 LORD JUSTICE HICKINBOTTOM: Sorry, page 293, this proceeds 10 on the basis of 80 per cent; this proceeds on the basis 11 of the Act? 12 MR CROSLAND: It is two things. The UK has a legally 13 binding commitment to reduce greenhouse gas emissions 14 under the Act. The government has also committed 15 through the Paris Agreement to limit the rise in global 16 temperature to the Paris limit. Two things. The Act 17 and the Paris limit. 18 LORD JUSTICE HICKINBOTTOM: Yes. 19 MR CROSLAND: The second paragraph: 20 "We were surprised you made no mention of either of 21 these commitments." 22 LORD JUSTICE HICKINBOTTOM: That's a reference to Paris, 23 either commitment is a reference to Paris, isn't it? 24 A reference to both. No, I am with you, yes. 25 MR CROSLAND: I think it is both the Act and Paris. 146 1 LORD JUSTICE HICKINBOTTOM: Yes. 2 MR CROSLAND: It just sort of follows the structure of the 3 "also committed to Paris". 4 LORD JUSTICE HICKINBOTTOM: Yes. 5 MR CROSLAND: Revealing, we say, is the minister's response 6 in two ways. This is the statement of common ground, 7 paragraph 97. It is page 43. The Secretary of State 8 says, "Well, we can't be expected to cover every 9 detail." 10 In our submission, my Lords, that is a revealing 11 statement. It shows misunderstanding of the scheme of 12 the Act and the significance of climate change, the 13 unique significance of climate change in relation to the 14 Act. The government, as a whole, considers the Paris 15 temperature limit vital to the country's future 16 security, to describe that as a detail, my Lords, is 17 surprising. 18 Then we come to the -- 19 MR JUSTICE HOLGATE: Sorry, just to make sure I have 20 followed this, the letter ends up by saying what the 21 writer expects government to do about this, I think. 22 MR CROSLAND: The CCC's letter. 23 MR JUSTICE HOLGATE: Yes. 24 MR CROSLAND: Yes. 25 MR JUSTICE HOLGATE: Turning to page 294: 147 1 "We look forward to the department's new Aviation 2 Strategy in 2019, which we expect will set out a plan 3 for keeping UK aviation emissions at or below ..." 4 Was the author actually, at that stage, saying: one 5 thing you should not do at this stage, in our view, is 6 to proceed to adopt the ANPS? 7 I don't think the letter goes that far, does it? It 8 seems to treat the -- 9 MR CROSLAND: I don't think it goes that far and that is 10 certainly not the point -- 11 MR JUSTICE HOLGATE: Despite having started off with 12 surprise. 13 MR CROSLAND: I think this is a different point being made, 14 my Lord. 15 MR JUSTICE HOLGATE: That is why I asked the questions. 16 MR CROSLAND: For our purposes, the material part of the 17 letter is the part that indicates explicitly that in the 18 committee's view, who are the government experts on 19 climate change, Paris is a relevant consideration. That 20 is in the response from the Secretary of State, that is 21 not disputed. It was open to the Secretary of State to 22 say: well, actually, Lord Deben, the reason we didn't 23 mention it is because we consider it irrelevant. 24 MR JUSTICE HOLGATE: Just to put this, for my purposes, in 25 simple terms, the thrust of the objective of the sort of 148 1 line of argument you were running in the consultation 2 exercise was not to do with where any additional airport 3 capacity should go, rather that there should be no 4 additional airport capacity on this scale; is that 5 a fair understanding? 6 MR CROSLAND: That is just not our point in these 7 proceedings. 8 Our point is simply that the law needs to be 9 applied, and the law involves assessing any proposal 10 against government policy. So, that would be true 11 wherever capacity was being considered. 12 MR JUSTICE HOLGATE: Okay. 13 MR CROSLAND: Then we get to the legal proceedings 14 themselves. The Secretary of State's detailed grounds 15 of defence to Plan B. This is bundle 2, page 64. 16 LORD JUSTICE HICKINBOTTOM: I just have my eye on the clock, 17 Mr Crosland, only because we haven't a huge amount of 18 time left and you are on page 7 of 19. So, you are not 19 halfway through the -- 20 MR CROSLAND: I will do everything I can to speed up, 21 my Lords, yes. 22 LORD JUSTICE HICKINBOTTOM: Thank you. 23 MR CROSLAND: So, at paragraph 24, we see the original 24 detailed grounds of defence: 25 "Furthermore, the Secretary of State considered the 149 1 Paris Agreement in producing the ANPS and explained his 2 position in the consultation response." 3 So, again, at that stage, the world, so far as they 4 are following this, is under the impression the 5 Secretary of State has considered this a relevant 6 consideration, that everything is well aligned with the 7 Paris Agreement. 8 We then get to January and the pre-trial review, and 9 that is where we hear from Mr Maurici. The sequence of 10 events is that, in the position statement, he says: if 11 we were bound to take the Paris Agreement into account, 12 then we lose. On the other hand, if we were only bound 13 to consider the position against the Climate Change Act, 14 then we win. Therefore, these applications for 15 disclosure are not necessary. 16 It is at that point that we say: well, we are 17 confused. We don't understand how that submission sits 18 with paragraph 24 of the amended defence, which says you 19 have taken it into account. 20 It is at that point that Mr Maurici offers the 21 clarification, the Secretary of State took it into 22 account only insofar as to determine it was irrelevant. 23 It was that sort of taking it into account that we 24 meant. 25 My Lords, I do apologise. I have actually lost the 150 1 next page in my speaking note, which I am trying to 2 find. 3 (Pause) 4 LORD JUSTICE HICKINBOTTOM: I think the point you have just 5 made is at the top of page 9, isn't it? 6 MR CROSLAND: Yes. 7 LORD JUSTICE HICKINBOTTOM: Pre-trial review, 15 January. 8 MR CROSLAND: Yes, and we then get to ... 9 That is when we write to the court and say we're 10 confused where we are because we are not getting the 11 concession that we thought we were going to get. It is 12 making it difficult to agree the statement of common 13 ground, and that's when we get the letter from the 14 court, which confirms, essentially, that what was said 15 in court was: the Secretary of State's position is that 16 the Paris Agreement is irrelevant. 17 That's the basis on which we are all proceeding. 18 MR JUSTICE HOLGATE: But it was then suggested that the 19 defendant might seek to clarify what was meant by that. 20 MR CROSLAND: Yes. 21 MR JUSTICE HOLGATE: We can read the email for ourselves. 22 It is in the bundle. Yes. 23 MR CROSLAND: The true position only emerged with disclosure 24 of the defendants' witness statements. Again, 25 Caroline Low, director of the airport capacity 151 1 programme. This is bundle 4, page 184. 2 LORD JUSTICE HICKINBOTTOM: Can we take this from your note? 3 MR CROSLAND: Yes, maybe that's easier. She makes it clear 4 that it is not appropriate that at this stage for the 5 government to consider any other possible targets that 6 could arise through the Paris Agreement. So, it was 7 already clear from that statement that Paris hadn't 8 really been considered. 9 Then she goes on to say: 10 "The carbon traded scenario [this is paragraph 469] 11 under this scenario overall CO2 emissions are set at 12 a cap consistent with a future global goal to limit 13 warming to 2 degrees Celsius." 14 Now, that, my Lords, that's not in the Climate 15 Change Act. That is using the old historic discredited 16 global temperature limit. 17 Phil Graham, formerly of the Airports Commission, 18 makes the same point. This is bundle 5, pages 228 to 19 229, paragraph 124. 20 He says, under the first of the two approaches, the 21 carbon traded scenario, we are looking at emissions that 22 are only allowed total global carbon emissions 23 consistent with a 2-degree global stabilisation target. 24 Again, completely independent of anything in the Climate 25 Change Act. 152 1 Ursula Stevenson of WSP, this is -- let's work from 2 my note. For others, this is paragraph 3.126 at 3 bundle 4. Page 419. 4 She says: 5 "The overarching target was devised by the CCC to 6 reduce UK's carbon emissions in line with the global 7 targets to limit global temperature rise to 2 degrees 8 Celsius." 9 As she puts: 10 "It in consonance with the international consensus 11 of the time." 12 She is acknowledging there that it is now out of 13 date. 14 So, this was the first time anybody knew. After 15 this incredibly protracted process, only when we get 16 these witness statements do we realise that a conscious 17 decision has been taken not to consider the ANPS against 18 the Paris temperature limit at all. On the other hand, 19 for the carbon traded scenario, they'd use the old 20 discredited 2-degree limit. The first time we discover 21 that. 22 We highlighted this in our reply, which is at 23 bundle 2, page 77. 24 We explained, in our view, the position has been 25 simplified. It is now clear where we all stand. So, 153 1 these are the pieces that I had been looking for. 2 There is just one point from the court's note, which 3 is bundle 13/399. So, what we see in the fourth 4 paragraph of the note -- and this was the reason for our 5 writing to the court: 6 "The defendant appears to be seeking to draft the 7 concession in language materially different from that 8 used in the position statement and from what was said at 9 the PTR without explaining why he sought to do so." 10 So, this just goes to the same point again. There 11 was a real reluctance through this process for the 12 Secretary of State to be straight with everybody and to 13 come out and say, "In my view, the Paris Agreement is 14 just not relevant." He didn't even want to do it 15 through these proceedings. 16 LORD JUSTICE HICKINBOTTOM: Yes. 17 MR CROSLAND: When we look at the amended detailed grounds 18 of defence, it ends up reading rather curiously because, 19 if we go to paragraph 10, look at the original, it 20 reads: 21 "The claimant inexplicably omits even to mention 22 this." 23 This is evidence that the Secretary of State has 24 considered the Paris Agreement through the consultation 25 process. "This is an unfair allegation Plan B are 154 1 making. Why didn't he mention all that thought we gave 2 to Paris in the consultation?" 3 When he amends his defence, he ends up having to 4 say, "Well, yes. Okay, actually what we meant was we've 5 considered it, to dismiss it as irrelevant." 6 So, now turning to how the defendant deals with our 7 argument on section 5(8). That is set out in his 8 skeleton at bundle 10, page 182. Section 171.1. He 9 makes two points in 171.1 and 171.2. 10 The first is that the Paris Agreement is not legally 11 binding. 12 The second is that there hasn't been a commitment to 13 revising domestic targets. He says that is the complete 14 answer to our claim. 15 So, really, those are the only two points we should 16 need to deal with. But before we come to those, there 17 is one other point we'd like to deal with first, because 18 that's one raised by his witnesses; that's the 19 suggestion that in isolation the Paris Agreement just 20 didn't provide a basis for assessing the ANPS. So, we 21 get that from Stevenson, for example, bundle 4, 22 page 419, 3.128: 23 "At this stage, it is not possible to consider what 24 any future targets might be to meet the ambitions of the 25 Paris Agreement." 155 1 The first point about that is, we say even if we 2 didn't know precisely what the implications were, the 3 one thing the defendant should have asked is, since we 4 can see the direction of travel, since we see that the 5 tendency here is to have to revise, let's just think 6 about whether the ANPS is consistent with any greater 7 ambition. He needed to ask that question, but he 8 didn't. 9 MR JUSTICE HOLGATE: Sorry, consistent with any greater 10 ambition for what? 11 MR CROSLAND: For any more stringent targets. 12 But let's take the claim that there just wasn't 13 really any sensible basis for knowing what the Paris 14 Agreement means. 15 We say that is just wrong. It is just contrary to 16 all the evidence. He only needed to speak to the 17 committee, he only needed to speak to his colleague in 18 BEIS and he would have had some pretty good answers. We 19 go back to the CCC's report at 2016. We have looked at 20 this already, where the CCC say the whole world will 21 have to get to zero carbon dioxide in the 2040s for 22 consistency with 1.5 degrees. 23 Bundle 13/352. This is the press release from the 24 IPCC's report. Yes, we know this is October, but the 25 point which has been agreed, the government has had this 156 1 in January, a version of this, which says the same 2 thing. On page 352, second paragraph: 3 "Global net human cause emissions of carbon dioxide 4 would need to reach net zero around 2050." 5 We have already seen the vote of the European 6 Parliament. They say net zero by 2050. That is the 7 implication of the Paris Agreement across the Union. We 8 have seen the statement from Claire Perry, on behalf of 9 the government to Parliament -- that is page 290 of 10 bundle 13 -- saying, "We want to get to net zero by 11 2050". 12 My Lords, in the statement that the Mayor has 13 helpfully handed up this morning -- or was it just after 14 lunch? Paragraph 3 of the Mayor's statement on climate 15 change: 16 "In accordance with the Paris Agreement, the London 17 Environment Strategy sets out an ambition for London to 18 be a zero carbon city by 2050." 19 So, my Lords, you see this congruence at every level 20 of government from the global, the IPCC, to the 21 European Parliament, to central government, the energy 22 minister, to the Mayor. They've all managed to work out 23 that, at the very least, the Paris temperature limit 24 implies zero global emissions by 2050. 25 So, it is very unclear why the Secretary of State 157 1 for transport was in such a different position, because 2 he had no idea what was implied. 3 Then my learned friend makes the point this is 4 subsequent to the designation, and of course we accept 5 that. But, at page 347 of the bundle, this is just sort 6 of evidence of what people understood Paris to mean. 7 This is a letter signed by 180 members of Parliament, 8 sent to the Prime Minister in September, also signed by 9 more than 50 members of the House of Lords. It begins 10 by saying: 11 "We are writing to welcome the announcement that the 12 government has asked the CCC for advice on a net zero 13 emissions target with the aim of bringing greenhouse gas 14 emissions in line with the Paris Agreement." 15 That is the point of it. 16 The last paragraph of that letter, the Paris 17 Agreement commits parties to holding the increase to 18 well below 2, 1.5: 19 "In order to achieve this, we will support you in 20 setting a before 2050 target net zero gas emissions and 21 hope you will enshrine in law within the lifetime of 22 Parliament." 23 So, what we say, my Lords, is if the Secretary of 24 State had even half an ear to what was going on all 25 around him, the question he needed to ask was: how is 158 1 the 37.5 million tonnes of carbon dioxide implied by the 2 ANPS by 2050, how is that consistent with the world, 3 that must get to net zero carbon emissions by 2050? 4 My Lords, we don't say -- we don't need to say that 5 there isn't an answer to that. We simply say this is 6 a question he needed to ask. 7 If he didn't ask this, then the mischief at which 8 those provisions in the Planning Act take aim, which is 9 to make sure that planning policy doesn't depart from 10 climate change policy, well, that mischief may not be 11 prevented. We have the two things going off at 12 tangents. 13 We say, credit to Mr Maurici for not raising this 14 argument in his skeleton argument, that it wasn't 15 possible to work out the implications of the Paris 16 Agreement. We say it is quite right not to raise that 17 to paragraph 171. We deal with it simply because it is 18 there, because its has been raised by his witnesses. 19 We now come to what perhaps is the heart of this, 20 and I will speed up now. The argument that government 21 policy, for the purposes of section 5(8), essentially 22 means only obligations which are legally binding on the 23 government. 24 He makes that argument in two ways. 25 First of all, the Paris Agreement is not legally 159 1 binding. This is 171.1. He says because it does not 2 impose binding legal targets on the UK to achieve any 3 specified temperature goal. 4 Then, in relation to revisions to the Climate Change 5 Act at paragraph 191.3 of his skeleton, he uses the 6 formulation: 7 "Unless and until the 2050 target is amended, 8 there's no material change to government policy." 9 We say the main difficulty with the Secretary of 10 State's position is the obvious one: policy and legal 11 obligation are just two different things. Generally, 12 policy implies a plan or intention. Policy precedes 13 law. The government produces a policy and then 14 sometimes that's implemented through a piece of 15 legislation. Sometimes not. 16 This is the dictionary definition of "policy": 17 "A course or principle of action adopted or 18 proposed." 19 We refer to Court of Appeal judgment in 20 Limit Number 2, authorities bundle M, 126. It happens 21 to be a case about an insurance claim, but actually the 22 context of this is very generic. It is a statement, you 23 know, that this is our policy, and the court is asked: 24 well, what does that mean? 25 Lord Justice Longmore says, at paragraph 7: 160 1 "The word 'policy' in general means elements of both 2 the present and the future." 3 At paragraph 9: 4 "My own view is that intention is at least an 5 important element of the concept of policy." 6 Then we look at Hillingdon, from 2010. We start at 7 paragraph 72, Lord Carnwath says: 8 "The claimants' grounds under this head are based 9 principally on the failure to reopen the consultation to 10 deal with three new aspects of departmental thinking." 11 Then, at 77, he goes on to say -- I mean, none of 12 the matters he refers to are legal obligations. The 13 planning assumption is not a legal obligation. The 14 605,000 ATMs, it's not a legal obligation. The new 15 "green slots" policy, not a legal obligation. 16 What he says is: 17 "The submissions add up, in my view, to a powerful 18 demonstration of the potential significance of 19 developments in climate change policy since the 2003 20 white paper. They are clearly matters which will need 21 to be taken into account under the new airport NPS." 22 Lord Carnwath doesn't say: well, you know, policy is 23 fixed. It is the Act until the Act changes. 24 That is clearly not his view. 25 We say if he had been aware of government statements 161 1 to Parliament about what they wanted to do, government 2 signing on to a Paris Agreement, he would have 3 considered those significant developments in policy, if 4 anything, on a larger scale. 5 We make just a point of simple statutory 6 interpretation. Mr Maurici makes the points with us, 7 that Planning Act, Climate Change Act, they come into 8 force at the same time, on the same date. We say if 9 what Parliament intended was that, under the 10 Planning Act, the Secretary of State should only 11 consider section 1 of the Climate Change Act, it would 12 have been the easiest thing in the world to say so. 13 Consider your planning policy against section 1 of the 14 CCA. No ambiguity. They don't say that. 15 I make two further points on this. The 16 self-contradiction inherent in the Secretary of State's 17 argument about legally binding obligations. The 18 2-degree Celsius target. That was never a legally 19 binding obligation. He did take that into account, as 20 we have seen from his witnesses. 21 So, if you are only meant to take into account 22 domestic legislation, what was he doing taking into 23 account the 2-degree Celsius target because that isn't 24 in any legislation. 25 Finally, on that part of it, we make the point that 162 1 we would potentially get into an almost absurd 2 situation, where we have a sort of race against time. 3 If it really is unless and until the 2050 target is 4 changed by law, then the whole world can know that the 5 government's plan that its stated intent is to revise 6 the targets, they could say on 3 May, "We welcome the 7 CCC's report, which tells us we need to hit net zero by 8 X, and we are going to implement it. But because of all 9 the other legislation that needs to go through, it is 10 going to take time to find a window. In the meantime, 11 we have to pretend nothing has changed. The government 12 policy stays fixed and we're just waiting to see what 13 happens first; does the DCO happen first or does the law 14 happen to get changed? 15 That, we say, would lead to absurd results. It also 16 potentially leads to a situation where the government 17 knows all it has to do is delay the legislation until 18 the DCO is through. We're not saying they'd do it. It 19 is just not a healthy situation to be in. 20 The second limb of the Secretary of State's defence 21 in section 171.2 of his skeleton argument, he states: 22 "There was no intention to revise domestic targets 23 in light of the Paris Agreement." 24 We say that's just demonstrably incorrect. Page 260 25 of the bundle, bundle 13. This is in fact the 163 1 government's defence in -- I think this is the defence 2 in the Plan B case. Paragraph 3, the last sentence: 3 "The government is committed to introducing a net 4 zero emissions target at the appropriate time in the 5 future." 6 It says they are going to commission a review after 7 the IPCC report. 8 We have seen the committee's statement in its 9 response to the Clean Growth Strategy. This is page 245 10 of the bundle. They say: 11 "Paris is likely to require a more stringent target, 12 but we get the government's announcement of a review." 13 But we come back then to page 289, the government's 14 statement in Parliament: 15 "We want to know how to get to net zero by 2050." 16 As I say, that in our submission, was interpreted by 17 large numbers of members of Parliament, as we have seen 18 from their letter, as a clear statement of policy 19 intent: we can't guarantee we are going to do it, but 20 this is what we want to do as a matter of policy. 21 Just a couple of other matters that are programmes 22 lurking in the Secretary of State's defence, though not 23 explicitly there, in paragraph 171. 24 The point about the DCO. Our answer to that is 25 a simple one. If the Paris Agreement is irrelevant for 164 1 the purposes of the ANPS, it is irrelevant for the DCO. 2 It doesn't make any difference. 3 But, certainly, this is the sort of issue that 4 should be resolved at this stage. It is a fundamental 5 principled issue. It is not a matter of the details of 6 a particular proposal whether we take the Paris 7 Agreement into account or not. 8 Then there is a suggestion that this issue has 9 already been addressed by the court in the 2050 target 10 case, BV BEIS. Not all cases, my Lords, we say, about 11 a horse relate to the same legal principles because it 12 is about a horse. The subject matter in the other case 13 is of course the same: the Paris Agreement and the 2050 14 target. 15 But the argument in that case was entirely 16 different. It was whether, over time, the Secretary of 17 State's failure to exercise his discretion to revise the 18 target frustrated the purposes of the Act. That is 19 a completely different argument from whether government 20 policy on climate change includes the Paris temperature 21 limit. Two completely different cases. 22 My Lords, that is the background, and for most of it 23 we say the legal arguments flow from there. 24 To come back to our ground 1, it is clear, from 25 part 2 of the Planning Act, the unique status of climate 165 1 change. It is mentioned not just once but twice, 2 section 5 and section 10. The only explicit factor that 3 the government is bound to take into account. 4 In the event of any ambiguity, we engage the Human 5 Rights Act, section 3. 6 If we go back to the Paris Agreements' preamble, 7 authorities bundle volume C, tab 25. This is of course 8 something that the government has signed and ratified, 9 and that says: 10 "Parties should, when taking action to address 11 climate change, respect, promote and consider their 12 respective obligations on human rights." 13 So, by ratifying that, the government has accepted 14 that principle. 15 We say it is clear from everything that my Lords 16 have seen the potential implications of going beyond the 17 Paris temperature limit are extremely grave, extremely 18 serious for everybody, and the implications must have 19 relevance to human rights. If that doesn't, well, then 20 what does? 21 We have heard from the Foreign Office this is an 22 existential threat to people. How can that not have 23 implications for people's rights; whether it is right to 24 life, whether it is right to property? 25 If that's the case, then section 3 of the Human 166 1 Rights Act argues for an interpretation of section 5(8) 2 that does include reference to the minimum standard for 3 safeguarding against the dangers of climate change, 4 which is the Paris Agreement. 5 The Secretary of State makes the point, which is one 6 we don't deny. There isn't a Strasbourg case dealing 7 with climate change as yet, but that's what makes it 8 relevant, we say, to look at the jurisprudence of other 9 parties to the European Convention on Human Rights. One 10 of those is the Netherlands. In October 2018, the Dutch 11 Court of Appeal upheld the decision of the district 12 court in Urgenda. This is authorities bundle 134, 13 volume 5, and paragraph 45 of the Court of Appeal 14 judgment, Articles 2 and 8 of the ECHR: 15 "As is evident from the above, the court believes it 16 is appropriate to speak of a real threat of dangerous 17 climate change, resulting in the serious risk that the 18 current generations of citizens will be confronted with 19 loss of life and/or disruption of family life. As has 20 been considered above by the court, it follows from 21 Articles 2 and Articles 8 ECHR that the state has a duty 22 to protect against this real threat ..." 23 It then refers to the Paris limit at paragraph 73: 24 "... the court is of the opinion that the state 25 fails to fulfil its duty of care ... the very serious 167 1 dangers, not contested by the State, associated with 2 a temperature rise of 2 degrees or 1.5 degrees, let 3 alone a higher, preclude any margin of uncertainty or 4 discretion." 5 We say that once we acknowledge the threat from 6 climate change is a threat to human rights, then the 7 discretion that lies in this area is circumscribed by 8 international law, by general principles of law. So, 9 there isn't a discretion to act inconsistently with the 10 Paris temperature limit. That's not a proposition we 11 say that Strasbourg would countenance. 12 So, therefore, in the event of any ambiguity in 13 relation to section 5(8), section 3 of the Human Rights 14 Act, that helps us to resolve it. 15 Ground 2, my Lords, argument from rationality. In 16 circumstances where the Prime Minister has said, at the 17 start of the Clean Growth Strategy: 18 "This is a landmark agreement." 19 The Paris Agreement. Where the minister for BEIS 20 has said this is a landmark agreement. Where the 21 Foreign Office has told us that they are using their 22 best endeavours, working in cooperation with BEIS, to 23 encourage other countries around the world to implement 24 the Paris temperature limit. 25 We say that for a minister in the Department for 168 1 Transport to announce: sorry, all of that stuff that my 2 colleagues are doing, well, really it's completely 3 irrelevant to this major national project with 4 implications for our emissions for many decades to come. 5 We say that is just extraordinary, and it clears the 6 rationality threshold. 7 The points made on behalf of the Secretary of State 8 that the threshold is particularly high in relation to 9 the economic or scientific arguments. 10 We say this isn't really an economical or scientific 11 argument. It is a basic point of statutory 12 interpretation. 13 In relation to his assertion that the threshold is 14 particularly high where Parliament has had a role in 15 proceedings. We say, well, let's look at the purposes 16 of the statutory provision. The intention here, which 17 is to keep in harness planning policy and climate change 18 policy, is to make sure that where there is any tension 19 between those two things -- I mean, it doesn't say in 20 section 5(8), "You must defer to climate change policy", 21 but essentially it is saying, "You must bring it to the 22 attention of Parliament". You must say to Parliament, 23 well, we think, potentially the difficulty we have with 24 the ANPS is that it is going to mean 37.5 million tonnes 25 of CO2 just from aviation by 2050 and we know that BEIS 169 1 is wanting to get us to zero by 2050, so there is 2 something for Parliament to look at here: which way do 3 we want to go? There is a tension. 4 That ensures that when Parliament makes its decision 5 on the ANPS it has the context that it needs. We reject 6 the idea -- and we have resolved this with the speaker, 7 that this is a bill of rights-type argument. It is not, 8 it's just about the making sure that Parliament has the 9 proper context for its decision. 10 So, for that reason, if there has been a breach of 11 section 5(8), which relates to the content of the 12 information to be laid before Parliament, the fact that 13 Parliament has made a decision without that information 14 that it ought to have had by virtue of section 5(8). 15 Well, that doesn't cure the problem. That is the 16 opposite of the reason to give us a higher threshold and 17 just emphasises the importance of Parliament having the 18 right information. 19 My Lords, if I may just say something now about 20 relief before finishing? 21 LORD JUSTICE HICKINBOTTOM: Yes. 22 MR CROSLAND: Again, to adopt something said -- I think it 23 was by Mr Pleming yesterday. Really, the question here, 24 if we're successful on this point, is whether the 25 appropriate relief is a review or a quashing, and, 170 1 again, our point is if there has been a breach on either 2 of these grounds, section 5(8) or rationality, there is 3 no properly constituted ANPS to be reviewed. It is 4 a fatal flaw. 5 That's the technical argument. The more purposive 6 argument is if, as appears, we have two different 7 trajectories for government now -- one the climate 8 change trajectory, one the ANPS trajectory -- it is 9 vital that is brought back together, and that can only 10 be done now by a quashing order, which ensures that 11 tension is properly considered by Parliament, which is 12 the right place for the tension to be addressed. 13 Unless I can assist you further. 14 LORD JUSTICE HICKINBOTTOM: No, thank you very much, 15 Mr Crosland. 16 Then I think it is Mr Spurrier tomorrow morning. 17 Then Mr Maurici. Good. 10.15 tomorrow. Thank you. 18 (4.20 pm) 19 (The court adjourned until the following day at 10.15 am) 20 21 22 23 24 25 171 1 INDEX 2 Housekeeping .........................................1 3 Submissions by MR WOLFE ..............................5 4 Submissions by MR CROSLAND ..........................96 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 172